Notes

More than a decade ago, the Supreme Court discarded its old notice pleading standard and replaced it with a “plausibility” standard in the landmark cases Bell Atlantic v. Twombly and Ashcroft v. Iqbal. A deluge of commentary followed, much of it critical of either the perceived informational imbalance that the standard created or the broad discretion that the decisions were understood to grant to district court judges. This Note identifies a pattern that appears to be emerging in the lower courts in which parties can satisfy their pleading burden by relying in part on “institutional facts”—that is, findings made by competent entities that implicate the factual allegations in the complaint. This Note argues that, as a matter of doctrine, this practice has yet to be recognized, but it should be applauded and encouraged as both intuitive and judicially tractable.

Torres v. Madrid is a seminal Supreme Court decision that was decided during the 2021 Supreme Court term. Torres centered on whether a woman who was shot in the back by the police but managed to escape was seized under the Fourth Amendment. This was a decision that garnered widespread attention because it was decided during a national reckoning with police violence following the George Floyd protests. The Court ultimately held that Ms. Torres was seized the instant the bullet punctured her body. This was a win for the civil rights groups as it allowed Ms. Torres to pursue a remedy, but the decision did not go far enough. This Note focuses on a special class of seizures called attempted and “touchless” seizures, and argues that recognizing both attempted and touchless seizures under the Fourth Amendment will open the door to redressing a broader range of police misconduct.

Within the literature on legal scholarship, academics have studied citation practices. For example, scholars have examined which authors, journals, and articles are most cited. But no one has examined which parts of articles scholars cite. Understanding which parts of articles scholars cite is not only intrinsically interesting, but also could inform how authors structure articles. This Note presents the results of a unique, hand-coded dataset of thousands of pinpoint citations. In brief: Authors are more likely to cite the beginning of articles but split their remaining citations roughly evenly. This pattern holds across flagship journals of variously ranked law schools and articles of varying length, but it is less pronounced for self-citation. While cynical explanations—that cite-worthy content is concentrated at the beginning, or authors tend not to thoroughly read the articles they cite—of the data is possible, a better explanation serves as a modest rebuttal to certain criticisms of legal scholarship.

While the Violence Against Women Act (VAWA) has long been venerated as a major legislative victory for those subjected to sexual and gender-based violence (S/GBV), VAWA is less often understood as the funding boon that it is for police, prosecutors, and prisons. A growing literature on the harms of carceral feminism has shown that VAWA has never ensured the safety of Black and Brown women; queer, trans, and gender-nonconforming people; sex workers; drug users; poor, working class, homeless, and housing insecure people; migrants; and others who do not fit the “everywoman” archetype; nor has it recognized their right to protect themselves from violence.

I contribute to this literature in three ways: First, drawing from the rich narrative traditions of critical race theory and critical legal studies, I tell untold and undertold stories of state violence against victims of S/GBV. Second, I weave together knowledge produced by scholars across disciplines, as well as by transformative justice organizers and practitioners, to situate my illustrations in a landscape of carceral violence. Third, I build on the written work of those scholars, organizers, and practitioners to propose transformative justice approaches to S/GBV. Specifically, I propose that we use VAWA to meet the demand that all criminalized survivors be freed by incentivizing the expanded use of state executives’ clemency powers, as well as by expanding the use of clemency at the federal level. I also argue that an anti-carceral VAWA must include financial reparations for criminalized survivors, as compensation for the harms that the state has inflicted on them through unjust prosecutions and imprisonment, as well as for the violence they have been forced to endure in prisons, jails, and the custody of police officers.

Courts cannot predict the future, but their decisions are binding precedent on future generations. Technological changes—that courts could have never predicted—break down this system of stare decisis. What made sense yesterday no longer makes sense today. Leveraging an understanding of technology, the rule of law, and stare decisis, this Note proposes a new approach to copyright fair use decisionmaking that involves utility-expanding technologies, or tools that radically change the use of and access to copyrighted works. When applying past precedent, courts should carefully contextualize prior decisions’ analyses of the first and fourth fair use factors within the precedent’s time and perform a similar analysis for the current case in the current era. The more that the factual circumstances diverge between the two cases, the less weight the court should give to the past precedent. Moreover, when generating precedent on utility-expanding transformative fair uses, courts should narrow their fair use decisions to the dispute before the court and only rule on the specific technology in question—helping ensure that the balance between advancing technological interests and protecting the rights of content creators does not become rooted in shortsighted thinking from a materially different past.

Public law, specifically constitutional due process law and administrative law, operates against a background presumption of no liability for omissions. To state the inverse, the majority rule is that liability applies only in the case of affirmative government actions. While this was not always the case, following DeShaney v. Winnebago County Department of Social Services and Heckler v. Chaney in the 1980s, the Court has generally closed off plaintiffs from litigating government failures-to-act. Scholars have pointed at the philosophical absurdity of delineating government acts and omissions, given that in a state as regulated as ours, everything is, at bottom, an affirmative choice. But the federal judiciary has remained fairly unmoved. Against this overriding presumption of no omissions liability, however, the courts have eked out several exceptions in which they are willing to find liability for inaction. While scholars have pointed to reasons why the judiciary has been reluctant to find liability for omissions, this Note looks at why the judiciary has been willing to find liability in certain cases. It identifies the overarching reason to be administrability, motivated by two characteristics that the court either creates or constructs. First, when the court identifies or constructs an affirmative component of an omission, it is more willing to find liability. Second, when there is an ex ante regulation or statute limiting government discretion, the court is similarly persuadable. This Note identifies seven categories across public law that fall into these two areas and in which omissions liability (at least in some way) exists: state-created danger doctrine, special relationships, Monell liability, a blurred line between procedural and substantive due process, abdication of agency statutory duties, failure to perform ministerial duties, and a refusal to initiate rulemaking. As its final contribution, this Note argues that scholars, litigants, and courts should seek to broaden public omissions liability, given that society is plagued with protracted crises resulting from government inaction. Relying on the proxies for administrability that the courts are already comfortable with, the final Part marries administrability with accountability and creates broader categories for each exception to tackle contemporary ills.

This Note argues that the Supreme Court has recently created a subsidized equality right in the Free Exercise Clause—by perceiving previously constitutional state action as discrimination against religion—and that this right’s logic is inconsistent with how the Court articulated funding rights in the abortion context prior to its decision in Dobbs v. Jackson Women’s Health Organization. This Note’s goal is two-fold. First, it will explain the legal principle driving the change in Free Exercise Clause doctrine: an energized equality. Although the expanding anti-discrimination principle is having transformative effects in the law of religious exemptions, this Note’s primary aim is to explore the implications of this change in the religious funding context, as much public commentary already has focused on legal developments in the former category. This Note’s second goal is to demonstrate how the Court’s articulation and application of this energized equality principle in religious funding cases reflect its political prioritization of free exercise rights. In these cases, on the basis of religious equality, the Court is willing to recognize violations of free exercise rights, whereas in nearly identical factual scenarios not explicitly involving religion, it is blind to inequality. This Note focuses on abortion funding pre-Dobbs as an example to demonstrate this logical inconsistency.

In the American criminal justice system, individuals from marginalized communities
routinely face longer terms and greater rates of incarceration compared to their
nonmarginalized counterparts. Because the literature on mass incarceration and
sentencing disparities has largely focused on the experiences of Black and Hispanic
individuals, far less attention has been paid to the overincarceration of Native peoples.
Yet there are clear indications that Native peoples are both overrepresented
within the criminal justice system and subject to unique sentencing disparities as
compared to other ethnicities. While these issues are partly motivated by traditional
drivers of criminal behavior, including access barriers to housing, employment, and
education, this Note argues that there is a greater systemic issue at play: the
enduring legacy of colonialism. Accounting for—and correcting—this legacy in the
criminal justice system is a complex task, though not an impossible one. For
example, over the past twenty years, the Canadian criminal justice system has
implemented a novel, remedial sentencing approach to address the overincarceration
of Aboriginal offenders: the Gladue approach. Recognizing the extent to
which the Canadian legal system has failed to account for the unique needs, experiences,
and circumstances of Aboriginal offenders, the Gladue approach mandates
an individualized and contextualized approach to sentencing, one which prioritizes
community-based alternatives to incarceration and emphasizes restorative justice.
This Note proposes two legal pathways by which to transplant the Gladue
approach to the American criminal justice system. In so doing, it offers the first
comprehensive analysis of the normative and constitutional implications of
applying the Gladue approach to the sentencing of Native peoples within the
United States. While the approach has challenges and shortcomings, it is nevertheless
a powerful tool by which the American criminal justice system can begin to
reckon with its colonial past and present.

One of the things courts across the nation struggled with throughout the COVID-19
pandemic was the conflict between preserving defendants’ rights under the
Confrontation Clause of the Sixth Amendment and implementing the safest public
health measures. Measures like masking or virtual testimony recommended by
public health officials threatened to abridge defendants’ rights. This Note has two
primary contentions. First, it will argue that the wide variation in the ways courts
chose to resolve this tension revealed a fundamental issue in our Confrontation
Clause jurisprudence: Courts have never actually defined the underlying right. In
fact, this Note will argue, that the “confrontation right” is more appropriately
understood as a bundle of distinct rights which must be carefully prioritized.
Second, this Note will argue that the standards used to adopt these modifications
were insufficiently rigorous. It proposes, therefore, that it is time for the legislature
to intervene as they have in other situations involving modified confrontation, and
to provide courts with a structured procedure for authorizing modified witness testimony
during times of emergency.

Green industrial policy, an aspirational headline with the 2019 Green New Deal
Resolution, has continued to gain steam and take shape. Green industry was a core
focus of presidential platforms during the 2020 election. Federal agencies have
demonstrated an increased willingness to revamp their purchasing power—that is,
their procurement policy—to buy green products and stimulate emerging green
industrial sectors. In general, these policy shifts toward green industry typically tout
three primary goals: to develop the domestic manufacturing base and to strengthen
both environmental and labor protections. For instance, in November 2021, as part
of the larger Infrastructure Investment and Jobs Act, Congress took aim at the
failure of supply chains to meet adequate environmental and labor standards by
enacting a domestic content preference-scheme for infrastructure programs
receiving federal financial assistance. The nationalist orientation of this kind of
policy, however, often runs afoul of the nondiscrimination spirit of World Trade
Organization disciplines.

This Note evaluates how trade disciplines can enable a green-industrial strategy in
government procurement while abiding by WTO disciplines, offering a few options.
While countries continue to aggressively deploy green industrial policies to attain
environmental benefits, these strategies must be carefully structured to avoid cooptation
by populist, protectionist goals. As such, this Note considers the implications
that arise when this form of green industrial procurement supports the advancement
of global welfare—and when it does not. In particular, this Note explores how
refining the traditional relationship between international trade rules and green industrial initiatives can produce mutually beneficial results. On the one hand,
trade rules can be interpreted to permit environmental and labor-conscious decisionmaking while protecting against protectionist discrimination. On the other, this
Note proposes that procurement decisionmaking should incorporate supply-chain
disclosure or cost-accounting of environmental and labor impact, which, when justified
under the existing public morals discipline in WTO trade agreements, forms a
method of government engagement that can enable a more robust international
trade regime.