Notes

The Obama Administration has acted decisively to cure a long-standing wound the United States has inherited from the Cold War by seeking to normalize relations with Cuba. However, prospects for full normalization are currently impeded by over four billion dollars in judgments levied against Cuba by politically motivated state courts in Florida under the state sponsor of terrorism (SST) exception to the Foreign Sovereign Immunities Act. These judgments create a serious obstacle and impede Cuba and its companies from transferring any assets into the United States. Because these judgments purport to punish Cuba for acts occurring during and immediately after the Cuban Revolution and Cuba was only placed on the SST list in 1982 for supporting insurgent movements elsewhere in Latin America, the courts manifestly exceeded their subject matter jurisdiction in issuing them. Nevertheless, several federal courts have afforded them full faith and credit and begun to enforce them against Cuba’s existing assets in the United States.

This Note therefore argues that the President can and should exercise his power to espouse and settle international claims to resolve these judgments pursuant to a sole executive agreement, whether or not he is able to secure congressional acquiescence for his actions. In doing so, the President can lean on a long record of historical practice affirmed repeatedly by the Supreme Court and buttressed by recent settlements of terrorism claims with Iraq and Libya. Finally, the U.S. government should be able to avoid a takings claim by SST judgment holders after the judgments’ resolution by funneling their claims into the Foreign Claims Settlement Commission and providing for some fractional compensation.

If piracy has been the bane of the music industry, and live performances are a financial buoy, what happens when live performances are ported to a virtual medium that all of a sudden may be subject to piracy again? This Note examines the various intellectual property frameworks through which one can look at the protectable elements of a live show or concert and what happens to the protectability of those elements once the show is ported to virtual reality. Given that technology to date has had a much larger impact on recorded music than on live performances, the introduction of virtual reality technology has serious disruptive potential. This Note argues that one can use existing intellectual property law to weave a complex web of protected elements around less traditional targets of IP like stage, set, and lighting design, background visuals, live performers, and props. This web of intellectual property protection will encourage strong contracting and yield more avenues for resisting piracy in the virtual reality world.

Consumer products increasingly record the content of user communications without regard to whether the recorded individual is the primary user—the purchaser of the product—or the secondary user—an individual who uses the product but is not the purchaser. The distinction between primary and secondary users proves significant when considering the enforceability of the product’s privacy policy, which purports to establish user consent to the collection of communications content but is only agreed to by the primary user, and protections available under federal and state statutes, many of which prohibit the recording of communications content without consent, and may thus benefit secondary users. This Note analyzes several privacy policies accompanying communications-capturing technologies as well as state eavesdropping laws and the Electronic Communications Privacy Act to demonstrate that the current consumer privacy regime does not adequately protect secondary users of communications-capturing technologies.

In designing protections for secondary users, this Note argues against requiring companies to provide front-end protection through notice of their privacy policies. Instead, this Note proposes a framework for incentivizing communications-capturing technology producers to distinguish between primary and secondary user data use on the back end.

It is a common refrain in American education that the quality of a student’s education “should not depend on his or her zip code.” Yet American public education consistently falls short: Many schools and districts, in particular those with large populations of low-socioeconomic status (low-SES) and minority students, do not receive the funding necessary to provide their students with educational opportunities equal to those in wealthier schools. Plaintiffs in many states have sought to improve educational equity by using litigation to attack disparities in funding between districts. However, intradistrict inequity—the inequitable funding of schools within the same district—has persisted throughout the United States to the detriment of low-SES students around the country. This Note argues that these funding disparities can and should be addressed through both courts and policy changes. Students, families, and other parties harmed by intradistrict funding disparities should use state courts and state constitutions’ education clauses to extend previous interdistrict school funding victories and to force policymakers to implement more equitable intradistrict funding. Policymakers should implement school funding policies that promote comprehensive equity and take into account relevant student characteristics, including low socioeconomic status. These policies should promote comprehensive equity by providing all schools with base funding sufficient to give each student an adequate education and by distributing any funding beyond that amount equitably across schools in accordance with their students’ characteristics.

The controversial scheme of “expedited removal,” which gives low-level immigration officials the authority to deport people with little to no judicial review, came roaring back into the public consciousness in the wake of President Trump’s executive order temporarily suspending entry into the United States of individuals from certain Muslim-majority countries. Hugely controversial since its inception, challenges to the expedited removal statutory scheme are blocked by a sixty-day time limit to challenges to any regulations or procedures implementing the expedited removal provisions. Rather than address the constitutionality of the expedited removal system itself, this Note focuses on that sixty-day time limit. Congress frequently uses statutorily imposed time limits to curb judicial review of agency rules. But the validity of a statutory time limit on judicial review of agency rules cannot be evaluated independently of the scope of the judicial review that it restricts. When, as is the case with expedited removal, a statutory time limit forecloses the constitutional challenges of people whose claims could not have been raised during the prescribed time limit, that time limit poses serious constitutional concerns. In light of these concerns, this Note argues that courts should not read the expedited removal time-limit to bar constitutional challenges to the expedited removal system that could not have been raised within the prescribed time limit. Unfortunately, despite the disturbing constitutional implications of the expedited removal time limit, there are considerable doctrinal and jurisdictional challenges to convincing a court to exercise jurisdiction over such a challenge. The Note concludes by discussing some of these potential barriers and ways in which the planned future expansion of expedited removal might help to overcome some of these roadblocks.

Under the doctrine of stare decisis, an important factor in determining whether to uphold or overrule a constitutional precedent is whether there are reliance interests in the rule it established. The Supreme Court’s analysis of reliance in this context has been brief and conclusory, leaving indeterminate the precise nature of the reliance interests at stake and causing uncertainty as to which forms of reliance the Court will deem cognizable in the future. Beginning with Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court has signaled a willingness to give weight to societal reliance—reliance interests of society as a whole. Drawing on previous scholarship, I argue that societal reliance should be given no weight. To measure reliance for stare decisis, the Court should first identify the entities that have taken steps in reliance upon the challenged precedent and then weigh the costs of repudiation to those entities. When purported reliance interests cannot be attributed to particular entities but instead belong to society as a whole, no true reliance is at stake, and it should therefore count for nothing. Adopting this approach will provide clarity, consistency, and predictability to the Court’s determinations whether to uphold or overrule constitutional precedents.

When it wants to be, the federal government is good at counting things. It tracks average daily caffeine intake (300 milligrams per adult older than twenty-two in 2008), weekly instances of the flu (875 reported by public health laboratories in the week ending January 14, 2017), monthly production of hens’ eggs (8.97 billion in December 2016), and annual bicycle thefts (204,984 in 2015). But it currently cannot provide a comprehensive count of how often police officers use lethal force against its citizens. The deaths of Michael Brown, Walter Scott, Tamir Rice, Laquan McDonald—all unarmed, black, and shot by police officers—and far too many others have forced the issue of lethal police use of force into the national consciousness. But while many recent reports have focused on the unreliability of current data, there has been relatively little consideration of how, exactly, the federal government might go about getting it. This Note seeks to fill this gap by laying out the contours within which the federal government can act to incentivize states to collect more and better data. After highlighting the need for robust data collected at the federal level and describing various issues with the current state of federal collection of law enforcement data, this Note outlines the legal landscape legislators considering such a policy must grapple with: the combination of federalism concerns that are particularly acute in the sphere of state and local law enforcement, and the Supreme Court’s somewhat ambiguous conditional spending jurisprudence. Finally, it explains how the federal government might incentivize data collection without running afoul of the law, proposing a legislative scheme for federal collection of law enforcement data that combines national guidelines, conditional spending requirements, and competitive grant funding.

Normally we don’t think of administrative agencies as policing constitutional equality norms. There’s a good reason for this—courts are often thought of as the “ultimate expositor” of constitutional meaning, while agencies are thought of as undertaking not constitutional interpretation, but statutory implementation. But recently scholars have explored the ways in which constitutionalism enters agency decisionmaking—commonly referred to as “administrative constitutionalism.” Administrative constitutionalism theories loosen the assumption that courts have a monopoly on constitutional understanding, and instead recognize agencies as constitutional actors in their own right. This Note explores how agencies have engaged in administrative constitutionalism to police LGBT equality rights—often in ways that differ markedly from judicial applications of equal protection. It then offers a defense of these practices, arguing that agencies have acted in the face of widespread underenforcement of equality norms by the judiciary owing largely to institutional considerations that—justified or not—have no bearing on the meaning of equal protection.

Recognizing privacy harms, Congress has created a patchwork of statutes that provide private rights of action with statutory damages. These statutes allow individuals to vindicate procedural and substantive violations without having to show actual damages. At the same time, however, through the rise of the Internet, some companies interact with millions of users a day. If the claims are aggregated, these companies rightly fear that an inadvertent violation of one of these statutes will lead them into bankruptcy. And they rightly fear that users with weak claims will seek class certification to coerce them into settlements for the benefit of class counsel alone. However, refusing to certify these classes practically eliminates the substantive rights Congress attempted to protect.

By raising due process concerns at the certification stage, courts can signal to litigants that the liability faced will not be as astronomical as rote multiplication would imply. This could, somewhat, level the playing field in settlement negotiations while maintaining the deterrence effect Congress intended to create. And it allows large, Internet-based companies to decide to go to trial against weak claims without the fear of crippling liability.

Police interrogations in the United States are focused on one thing: getting a confession from the suspect. The Reid Technique, a guilt-presumptive nine-step method and the most common interrogation technique in the country, is integral to fulfilling this goal. With guidance from the Reid Technique, interrogators use coercion and deceit to extract confessions—regardless of the costs. When used with juvenile suspects, this method becomes all the more problematic. The coercion and deception inherent in the Reid Technique, coupled with the recognized vulnerabilities and susceptibilities of children as a group, has led to an unacceptably high rate of false confessions among juvenile suspects. And, when a juvenile falsely confesses as the result of coercive interrogation tactics, society ultimately suffers a net loss.

In the Eighth Amendment context, the Supreme Court has recognized that children are different from adults and must be treated differently in various areas of the criminal justice system. The Court’s recent Eighth Amendment logic must now be extended to the Fifth Amendment context to require that juveniles be treated differently in the interrogation room, as well. This Note suggests that the Reid Technique be categorically banned from juvenile interrogations through a constitutional ruling from the Court. Doing so would not foreclose juvenile interrogation; rather, a more cooperative and less coercive alternative could be utilized, such as the United Kingdom’s PEACE method. Nonetheless, only a categorical constitutional rule that prohibits the use of the Reid Technique in all juvenile interrogations will eliminate the heightened risk of juvenile false confessions and truly safeguard children’s Fifth Amendment rights.