NewYorkUniversity
LawReview

Notes

2018

Taxing Single Mothers: A Critical Look at the Tax Code

Akari Atoyama-Little

Single mothers are responsible for raising one in five American children. They are disproportionately poor women of color. This Note explores the Internal Revenue Code’s provisions that, though facially neutral, disadvantage single motherhood in effect. Although the tax code’s progressivity does some work to alleviate poverty among single mothers, major income tax provisions intended to support families fail many single mothers precisely because of their low-income status. Many of the benefits go to higher-income families, who tend to be married couples. This Note argues that the tax code should do more to support single mothers. Specifically, this Note argues that the existing federal child and dependent care credit should be made refundable so that it reaches more single mothers and better functions as an incentive to procure quality care for children.

Affirmatively Further: Reviving the Fair Housing Act’s Integrationist Purpose

Austin W. King

This Note seeks to contribute to the revival of an underutilized section of the Fair Housing Act intended not just to ban individual acts of discrimination but also to achieve integrated residential neighborhoods. The gulf between lofty, vague federal policy and the local governments responsible for zoning, planning, and housing siting decisions, however, has stymied this pro-integration purpose. Although all state and most local governments are required to certify that they are meeting their obligation to “affirmatively further fair housing,” this certification has rarely risen above mere boilerplate. Building on recent litigation that reinvigorated the Act’s positive purpose with some skeletal substance and a new proposed rule seeking to improve procedural compliance, this Note proposes an expanded federal rule to define meaningfully this obligation through concrete, quantitative benchmarks. In the absence of such an expanded rule, this Note suggests guidance on how a court might evaluate compliance with this capacious statutory standard by using housing segregation data in a burden-shifting framework. This Note concludes by addressing workability and constitutionality concerns, evaluating practical hurdles, and testing the proposed rule against the Roberts Court’s jurisprudence on equal protection and federalism. The ultimate purpose is a pragmatic program to achieve the still-unrealized goal that animated the Act’s passage: a truly integrated nation.

Accounting for Punishment in Proportionality Review

Julia L. Torti

The Eighth Amendment has been interpreted to demand proportionality between an offender’s crime and his punishment. However, the current proportionality standard is widely regarded as meaningless. In weighing the severity of the crime against the harshness of the punishment, modern courts do not consider any aspect of the sentence beyond the number of years listed. This Note argues that a more comprehensive analysis of the features of a sentence that contribute to its severity has the potential to reinvigorate the proportionality principle by giving courts a fuller picture of the harshness of modern sentences. Although there are some hurdles to conducting this more robust analysis, this Note proposes methods by which courts could consider the true length of carceral sentences, the prison conditions in which the sentences are served, and the collateral consequences that accompany many criminal convictions. In so doing, this Note demonstrates that some methods of accounting more accurately for the harshness of punishments are neither impracticable nor in tension with other areas of Eighth Amendment doctrine.

Unscrambling the Egg: Social Constructionism and the Antireification Principle in Constitutional Law

Natasha J. Silber

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.

Wrapped in Ambiguity: Assessing the Expressiveness of Bareback Pornography

Christopher A. Ramos

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.

U.S. Agency Independence and the Global Democracy Deficit

Paul E. Hubble

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.

Toward a Bayesian Analysis of Recanted Eyewitness Identification Testimony

Kristy L. Fields

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.

Randomizing Immigration Enforcement: Exploring a New Fourth Amendment Regime

Cynthia Benin

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.

Community Dreams and Nightmares: Arizona, Ethnic Studies, and the Continued Relevance of Derrick Bell’s Interest-Convergence Thesis

Kevin Terry

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.

Not So “Free and Clear”: A Critical Examination of the Piper Test in Light of Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

Christopher S. Oglesby

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.