Notes

Since the mid-twentieth century, the Court’s developing view on the social construction of identity has driven some of the most fundamental changes in modern equal protection jurisprudence. One of these transformations has been the development of what I call the “antireification principle” in the Court’s affirmative action cases. Under this principle, an important function of constitutional law is to regulate social meaning in accordance with the view that social categories like race are mere constructs. Guided by the antireification norm, the Court has used judicial review to block state action that, in its estimation, treats false constructs as real, important, or enduring. The Court, however, has been highly selective in its application of the principle outside of the race context. Where gender and sexuality are at issue, the Court has been more than willing to cast existing categories as real and even celebrate them.

This Note describes and questions the Court’s selective use of antireification, suggesting that there is no reason, per se, why antireification could not further the goal of social equality in the realms of gender and sexuality. By denying their bases in reality, the Court could—according to the logic of antireification destabilize all such identity constructs and decrease the harms they cause. This Note proceeds to hypothesize a set of explanations for the Court’s selective application of the principle, but ultimately finds each unsatisfying. Finally, it suggests that selective deployment of antireification is symptomatic of inherent contradictions embedded in the structure of contemporary equal protection doctrine, which relies upon fixed identity categories at the same time that it seeks to destroy them.

Contrary to popular belief, pornography has not won the culture war. Far from enjoying the spoils of victory, pornography instead faces legislative ire up to the point of absolute prohibition. On November 6, 2012, close to fifty-six percent of voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure B”), completely prohibiting “bareback”—or condom-free—pornography production. An intuitive response to such an imposition is to raise a First Amendment claim. However, bareback pornography has yet to receive explicit protection by any legislature or court. This Note takes a step toward assessing bareback pornography’s First Amendment status by first arguing that bareback pornography is sufficiently expressive to merit First Amendment protection under traditional theoretical justifications, doctrine, and emerging arguments for an expanded interpretation of First Amendment protection. This Note then argues that Measure B is a content-based restriction on protected expression and, therefore, should receive the Court’s most demanding scrutiny. Under such a test, Measure B should be deemed unconstitutional.

Critics have accused transnational regulatory networks (TRNs) such as the Basel Committee on Banking Supervision of being undemocratic, but they rarely step back and ask if democracy is the right criterion for evaluating regulatory networks. Such critics often point to the seemingly robust checks of domestic administrative law and argue that similar mechanisms should constrain TRNs. However, the Federal Reserve Board of Governors, a significant banking regulator in the United States, is not democratic. Using the Federal Reserve Board as a case study, this Note challenges critics’ claims that there is such a wide gulf between domestic and global procedures.

The reliability of eyewitness identification has been increasingly questioned in recent years. Despite acknowledgment that such evidence is not only unreliable, but also overly emphasized by judicial decisionmakers, in some cases, antiquated procedural rules and lack of guidance as to how to properly weigh identification evidence produce unsettling results. Troy Anthony Davis was executed in 2011 amidst public controversy regarding the eyewitness evidence against him. At trial, nine witnesses identified Davis as the perpetrator. However, after his conviction, seven of those witnesses recanted. Bogged down by procedural restrictions and long-held judicial mistrust of recantation evidence, Davis never received a new trial and his execution produced worldwide criticism.

On the 250th anniversary of Bayes’ Theorem, this Note applies Bayesian analysis to Davis’s case to demonstrate a potential solution to this uncertainty. By using probability theory and scientific evidence of eyewitness accuracy rates, it demonstrates how a judge might have included the weight of seven recanted identifications to determine the likelihood that the initial conviction was made in error. This Note demonstrates that two identifications and seven nonidentifications results in only a 31.5% likelihood of guilt, versus the 99% likelihood represented by nine identifications. This Note argues that Bayesian analysis can, and should, be used to evaluate such evidence. Use of an objective method of analysis can ameliorate cognitive biases and implicit mistrust of recantation evidence. Furthermore, most arguments against the use of Bayesian analysis in legal settings do not apply to post-conviction hearings evaluating recantation evidence. Therefore, habeas corpus judges faced with recanted eyewitness identifications ought to consider implementing this method.

This Note draws upon immigration law to analyze a new Fourth Amendment regime put forth by criminal law scholars Bernard Harcourt and Tracey Meares. In Randomization and the Fourth Amendment, Harcourt and Meares propose a model for reasonable searches and seizures that dispenses with individualized suspicion in favor of random, checkpoint-like stops. Randomization, the authors contend, will ensure that enforcement is evenhanded and will alleviate burdens that result from discriminatory targeting. This Note explores the possibility of randomization in immigration enforcement, a useful context to test the Harcourt-Meares model because it exemplifies the ills the authors seek to address. Though analysis demonstrates that randomization falls far short of its goals, its failures are instructive. Indeed, the lens of immigration enforcement illuminates essential conditions that must exist in order for randomization to be viable.

In 2010, the Arizona State Legislature drew national attention to issues of ethnicity, pedagogy, and censorship in public schools by passing House Bill 2281. As interpreted by Arizona officials, this law made the curriculum of the Mexican American Studies Department in Tucson public schools illegal. The ongoing conflict between supporters and opponents of the Department in public discourse—and in state and federal courts—raises important questions about the ways that majority and minority cultures interact in United States educational institutions. This Note uses Arizona’s ethnic studies ban to suggest that Derrick Bell’s interest-convergence thesis and Lani Guinier’s related theory of interest-divergence continue to be useful tools in assessing the dynamics between powerful and marginalized groups. The Note sets the facts of the ethnic studies controversy against recent criticism of Professor Bell’s work and, in doing so, rebuts the assertion that the interest-convergence thesis has become less relevant to understanding contemporary intergroup conflict in the United States.

Chapter 11 of the Bankruptcy Code provides for a complete discharge of “claims” against the debtor once a plan of reorganization has been confirmed. The approach taken by bankruptcy courts to define a bankruptcy claim has varied. One such approach—the Piper test—has sought to balance discharging the maximum amount of claims against a debtor while still providing due process to the debtor’s claimants, including future claimants. The Piper test defines dischargeable claims to include those claims that accrued post-petition, but before plan confirmation. This Note seeks to explore the effectiveness of the Piper test in light of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), which has significantly altered the bankruptcy process by incentivizing debtors to enter and exit Chapter 11 quickly. The consequentially reduced interval between petition and confirmation has weakened the effectiveness of the Piper test, potentially leaving many more liabilities against a debtor outstanding after the bankruptcy process is complete and thereby threatening the going concern value of the reorganized debtor. In light of such an effect, this Note advocates an alternative approach to handling bankruptcy claims. This Note recommends defining a claim as broadly as possible so that the going concern value of reorganized debtors is preserved, while mitigating the resulting due process concerns by adopting wider usage of specific mechanisms to preserve due process to the debtor’s current and future claimants.

Since the September 11th attacks, local law enforcement agencies in major metropolitan areas have become increasingly involved in counterterrorism and intelligence activities. Unfortunately, this development has not yet spurred a comparable increase in intelligence oversight. Indeed, at the local level, intelligence activities are conducted largely in a “formal governance vacuum.” This situation is unsustainable. Local formal oversight mechanisms are desperately needed. Whether local actors are actually up to the intelligence oversight task is another question. And it is a question that has yet to be answered in a satisfactory manner. Skeptics have written off local overseers with little explanation, while advocates of local intelligence oversight have endorsed local overseers without apparent consideration of their viability. This Note seeks to provide a comprehensive answer. Drawing upon lessons from oversight of the federal intelligence community, this Note demonstrates that the federal intelligence oversight apparatus is a workable model for the local context.

To have a strong public education system, it is imperative to recruit and maintain high-caliber public school teachers and ensure that school administrators can terminate underperformers. Teachers unions have contributed to this effort by increasing professionalism in teaching and giving teachers a role in school management, but they have also detracted from it by making it too difficult to terminate incompetent teachers. Nonunionized charter schools that employ teachers at will, on the other hand, may leave teachers vulnerable to arbitrary or malicious terminations. Unionized charter schools, a relatively recent phenomenon, produce teacher contracts that, as the result of labor negotiations between two prominent players in education, could provide valuable lessons for reform to the American public education system. This Note’s analysis of contracts from the unionized charter schools in New York City reveals that they provide teachers with more job protection than employment at will but far less than provided in the public school union contract. Traditional public schools and unions should reform their collective bargaining agreements to provide a level of job security similar to that in the unionized charter school contracts. This may create the right balance between allowing principals to terminate incompetent teachers and protecting teachers from arbitrary or malicious terminations.

In Boumediene v. Bush, the Supreme Court held that the right to the writ of habeas corpus extended to noncitizen detainees captured abroad and detained at the American naval base in Guantánamo Bay, Cuba. Although Boumediene extended habeas corpus to Guantánamo and formulated a practical extraterritorial habeas corpus framework, the decision may have been a limited victory for civil rights advocates, as it did not resolve the question of the writ’s reach to any other American detention facilities located abroad, including the Bagram Theater Internment Facility in Afghanistan. In Al Maqaleh v. Gates, the D.C. District Court concluded that the petitioners detained at Bagram, like those at Guantánamo, had the right to petition for the writ of habeas corpus, but the D.C. Circuit reversed the lower court on appeal. The D.C. District and Circuit courts came to different conclusions because they took drastically different approaches to the Boumediene framework. This Note argues that the district court came to the right conclusion because its analysis was more faithful to Boumediene, it was more conscious of Boumediene’s separation-of-powers concerns, and, like the Supreme Court, it was appropriately receptive to the possibility that the Executive was attempting to “switch off” the Constitution by strategically detaining suspected enemy combatants in a location unlikely to receive judicial review. Furthermore, the fact that the district and circuit courts were unable to apply the framework consistently suggests that the Boumediene analysis may require refinement or clarification. This paper attempts to provide that.