LawReview
Notes
2018
The Unconstitutionality of Nonuniform Immigration Consequences of “Aggravated Felony” Convictions
Iris Bennett
In this Note, Iris Bennett analyzes the “aggravated felony” provision of the Imimigration and Nationality Act, which requires the deportation of noncitizens convicted of a number of crimes under federal or state law. Bennett discusses the implications of the provision in light of the Constitution’s Naturalization Clause, which requires a “uniform Rule.” She argues that the aggravated felony provision, as amended in 1996 by the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, results in nonuniform immigration consequences for state criminal convictions because of varying state standards and definitions. After surveying courts’ treatment of the constitutional provisions for uniformity in immigration, taxation, and bankruptcy law, Bennett demonstrates that the jurisprudence of the uniformity requirement in immigration law is in need of further elaboration. She argues that the Naturalization Clause requires that the operation of immigration law not vary based on differences in state law and proposes a doctrinal model of constitutional uniformity for courts confronting this issue.
Digital Sampling and the Recording Musician: A Proposal for Legislative Protection
Christopher D. Abramson
In this Note, Christopher Abramson argues that Congress should create a statutory property right for musicians whose work is sampled or reused by other recording artists. Abramson examines the technological changes and business arrangements within the recording industry that necessitate this protection. He discusses the inadequacy of existing remedies such as contract and copyright law. Abramson also shows how the existing collective bargaining agreement between the American Federation of Musicians and the record companies fails to address adequately the problems associated with digital sampling. He concludes by calling for the enactment of legislation requiring record companies to compensate musicians whose work is appropriated by sampling.
Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws
Jane A. Small
All fifty states have enacted sex offender registration acts (SORAs). In addition to requiring registration with the state, these laws usually provide for the notification of an individual’s status as a sex offender-along with the dissemination of personal information-to law enforcement officials and members of the community. In this Note, Jane Small argues for enhanced due process protections for offenders when they are required to register. Since SORAs are not aimed at punishment but rather community protection, they are civil, not criminal, statutes and the due process standard for civil proceedings, as announced in Mathews v. Eldridge, ought to be applied. That standard requires a court to weigh the risk of depriving an individual of a protected interest against the governmental interest embodied in a particular procedure. Small surveys SORAs’ problems, including the inappropriately generalized categorization of sex offenders and the danger notification poses to individual offenders, and outlines recent cases applying the Mathews standard to assess the constitutionality of SORAs. She then evaluates available procedural protections and current notification mechanisms for their compliance with the requirements of Mathews. She concludes that an individualized, fact-specific assessment must be made in every case and that the proceedings must be narrowly geared to the legitimate aim of SORAs-community protection-in order not to infringe on the individual’s interests any more than is necessary to achieve that aim.
A Birthright Rearticulated: The Politics of Bilingual Education
Nirej Sekhon
This Note addresses Proposition 227, California’s recently enacted voter initiative banning bilingual education in public schools. Nirej Sekhon argues that the proposition functions rhetorically as a racially inflected exhortation to nonwhite peoples in the United States. The proposition equates American identity with white identity by claiming English as the birthright privilege of white Americans. As such, the proposition is continuous with the history of language and education politics in the United States. The author concludes by sketching the broad challenge that his analysis poses to current legal mechanisms.
Can Courts Confer Citizenship? Plenary Power and Equal Protection
Derek Ludwin
In this Note, Derek Ludwin applies principles of equity to the jurisprudence of nationalization law. In a recent case, Miller v. Albright, the Supreme Court failed to provide a remedy for the victim of an unconstitutional naturalization statute that favors foreign-born illegitimate children of citizen mothers over those born to citizen fathers. Ludwin highlights the Court’s unnecessary impotence due to its strict adherence to the plenary power doctrine and unquestioning deference to Congress. He traces the history of the application of the plenary power doctrine in naturalization law, noting that the Court has never overturned a naturalization statute on equal protection grounds. Ludwin finds, however, that Miller, in which a majority of the justices deemed a naturalization statute to be unconstitutional, marks an important jurisprudential shift toward applying the plenary power doctrine in conjunction with other interests, such as equal protection. Ludwin further argues that the Miller Court’s unwillingness to address the tension between plenary power and equal protection has left the lower courts without guidance in this area and that without an effective remedy-the power to grant citizenship directly-the Court’s finding of unconstitutionality is too weak to afford any real protection. The answer, he states, lies in principles of modem equity. Ludwin concludes that direct conferral of citizenship is in accordance with the Court’s generous post-Brown exercise of equity power in equal protection cases.
Decertification of Statewide Tobacco Class Actions
Susan E. Kearns
Tobacco litigation splintered into statewide class actions after the Fifth Circuit decertified a nationwide class of “nicotine-dependent persons” in Castano v. American Tobacco Co. In this Note, Susan Kearns analyzes “son of Castano” class actions as a vehicle for adjudicating individual tobacco claims. Reviewing two recent tobacco class actions, she argues that statewide class actions confront the same obstacles that required decertification of the nationwide Castano class. She contends that litigant autonomy, judicial efficiency, and due process considerations should preclude the certification of a “son of Castano” class action in state or federal court.
Subsidized Speech and the Legal Services Corporation: The Constitutionality of Defunding Constitutional Challenges to the Welfare System
Megan Elizabeth Lewis
In 1996, Congress passed legislation restricting lawyers receiving federal finds through the Legal Services Corporation from undertaking litigation challenging the constitutionality of welfare laws. Two circuits of the court of appeals have since rendered conflicting decisions on the constitutionality of this restriction. In this Note, Megan Lewis argues that this constraint on Legal Services grantees constitutes impermissible viewpoint discrimination under the First Amendment. Lewis’s argument is grounded on the principle that the Constitution limits the government’s power to restrict speech that it subsidizes. She suggests that the public forum doctrine, when analyzed in light of the Supreme Court’s decisions in Rosenberger v. Rector & Visitors of the University of Virginia and Rust v. Sullivan, provides a framework for distinguishing between permissible and impermissible restrictions on Legal Services grantees. Building on the terminology of Professor Robert Post, Lewis asserts that Legal Services lawyers act independently when they serve their clients, rather than as instrumentalities of the state, and hence do not fall within the government’s managerial control. Moreover, the restriction infringes on their clients’ First Amendment right to participate in litigation, itself a protected public forum. Lewis concludes that the restriction impermissibly interferes with protected speech and skews the debate within the public forum created by the subsidy for Legal Services.
Hanging Out the No Vacancy Sign: Eliminating the Blight of Vacant Buildings from Urban Areas
David T. Kraut
Despite recent aggressive efforts to revitalize distressed urban communities, city governments have been unable to find an effective solution for the problem of vacant buildings. Such properties adversely affect the surrounding community, increasing crime and the risk of fire while posing health hazards to nearby residents. Because many owners continue to pay taxes on vacant buildings with the speculative hope of future profit from sale or condemnation, city governments have a particularly difficult time seizing the properties without paying exorbitant amounts of just compensation. In this Note, David Kraut suggests a new way for city governments to eliminate these properties. First, Kraut argues that municipal governments should have the power they currently lack to seize vacant buildings with a substantial number of local housing code violations or that have been vacant for a significant amount of time. Kraut then suggests lowering the amount of just compensation paid for these buildings by discounting the property based on how much it would cost to bring the property up to code standards. He concludes by discussing some of the potential constitutional issues that could be raised by disgruntled property owners.
Valuing Honest Services: The Common Law Evolution of Section 1346
Alex Hortis
In this Note, Alex Hortis analyzes the application of the mail fraud statute, as codified at 18 U.S.C. § 1346, to enforce citizens’ intangible right to the “honest services” of public officials. Reviewing the evolution of § 1346, Hortis finds that, although it has been perceived as statutorily vague and intrusive into state and local affairs, § 1346 has not been used in an unnecessary or overly broad manner, does not violate defendants’ constitutional rights, and does not result in a significant number of federal prosecutions of state and local officials. Rather, viewed from an economic perspective, Hortis argues that § 1346’s broad malleability, as a form of federal common law, is one of its greatest assets as it is more efficient to let the courts define crimes on a case-by-case basis than to redraft statutes to address new forms of corruption. Hortis further argues that centralizing enforcement at the federal level takes advantage of economies of scale and prosecutorial experience. Hortis concludes that § 1346’s broad applicability benefits the public by reducing prosecution costs with its lower evidentiary requirements, creating marginal deterrence against corruption, and reinforcing a desirable standard of conduct for public officers.