Notes

In the Spring of 2020, a panel of the Sixth Circuit Court of Appeals in Gary B. v. Whitmer penned an opinion recognizing a fundamental right to basic minimum education. While this decision was subsequently vacated pending en banc review and then dismissed as moot following a settlement, it stands as a bellwether of the long-overdue march toward recognition of positive rights under the Constitution. A series of Burger Court opinions attempted to calcify the notion that the Constitution is a “charter of negative liberties,” most famously DeShaney v. Winnebago County Department of Social Services and its progeny. These opinions erected three key doctrinal barriers to recognition of positive rights: 1) that a cognizable due process claim must arise from direct, de jure state deprivation; 2) that separation of powers points towards legislatures, not courts, as the appropriate bodies for curing social and economic ills; and 3) that furnishing equality is not a proper aim of due process.

But substantive due process doctrine has transformed over the past few decades. Most notably in a series of cases protecting the rights of LGBTQ+ individuals—Lawrence v. Texas in 2003, United States v. Windsor in 2013, and Obergfell v. Hodges in 2015—the doctrines of due process and equal protection have fused so intimately as to have revealed a new doctrinal structure, which Laurence Tribe has termed “equal dignity.” The doctrine of equal dignity has profound implications for the recognition of positive rights. Its theoretical tenets undermine the doctrinal elements which have traditionally steered federal courts away from recognizing positive rights. This Note argues that the case of education—considered in light of the post-Obergefell substantive due process doctrine—dismantles each of the traditional pillars of negative-rights constitutionalism, paving the way for recognition of a positive right to a basic minimum education. More broadly, Gary B. demonstrates that courts are now doctrinally equipped to recognize positive rights within the framework of modern substantive due process, a development that has radical implications for Fourteenth Amendment jurisprudence and the project of constitutional equality.

Photography has exploded into the most accessible mode of creative production of
our time: Over one trillion photographs will be taken this year. Yet despite the
medium’s dramatic expansion, catalyzed by advances in technology, the copyright-
ability of photography remains controlled by a Supreme Court precedent that is
over one hundred years old, Burrow-Giles Lithographic Co. v. Sarony. The long-
standing interpretation of Burrow-Giles in the lower courts has rendered nearly
every litigated photograph copyrightable, even though the factual foundation of
Burrow-Giles is remarkably inconsistent with how most photography is produced
today. With protracted, low-value, and often frivolous copyright litigation over
photographs increasingly clogging up federal courts’ dockets, it is high time to
reconsider photography’s copyright.

This Note argues that a revitalization of copyright’s merger doctrine—long ignored
or dismissed in the realm of photography’s copyright—could be the vehicle for this
reassessment. Theorizing photographs as mergeable does not render the medium
per se uncopyrightable, but captures the spirit of the Supreme Court’s now 150-
year-old instruction to permit photography’s copyright, while correcting for
changes in photographic technology to better uphold the Court’s simultaneous
mandate that “ordinary” photographs should not receive copyright protection.

There is a practice among prosecutors whereby they pursue incompatible theories
of a case against two or more defendants for criminal behavior for which, factually,
only one defendant can be culpable. While it’s difficult to determine just how fre-
quently these arguments are made, at least twenty-nine people have been con-
demned to death in cases where the defense has alleged inconsistencies, and seven
of those twenty-nine people have been executed. Situations like these cut against our
moral and ethical understanding of fairness and of justice; these arguments operate
in a world detached from reality, where factually singular acts can have multiple
agents, prosecutors are not accountable to a consistent narrative, and factfinders are
asked to make ultimate determinations of death based on factual impossibilities.
But finding ways to challenge the practice has, frustratingly, fallen short in pro-
viding legal relief to the condemned.

This Note looks beyond the due process and Eighth Amendment arguments against
this practice that have not provided fertile ground for protecting criminal defen-
dants from this type of vindictive approach to sentencing. Instead, this Note makes
a normative argument that the history of the Fifth Amendment’s Double Jeopardy
Clause, along with civil law principles of collateral estoppel that have been incorpo-
rated into the criminal law through the Clause, and protections against vindictive
sentencing practices that undergird the Clause bars this practice. In other words,
this Note argues that double jeopardy preclusion principles bar prosecutors from
relitigating issues of ultimate culpability in successive cases. This solution draws on
the Supreme Court’s only consideration of this issue—Bradshaw v. Stumpf—which
makes an analytical distinction between the consequences of this practice on convic-
tion and consequences on sentencing.

The principal-agent problem in class actions, which occurs whenever the interests
of class counsel (the agent) conflict with those of the class (the principal), has
plagued the class action system for decades. When these conflicts of interest arise,
they often lead to plaintiff classes receiving lower monetary awards than they other-
wise deserve, above-market fees for attorneys, and underenforcement of claims
against wrongdoers. Throughout the years, both Congress and scholars alike have
tried to address this issue, but it persists. This Note invites Congress and scholars to
think differently about potential solutions to a problem that has been around for far
too long. It argues that looking to qui tam litigation, specifically, the False Claims
Act, provides a unique approach that could help significantly curtail the principal-
agent problem. By permitting the government to install itself as lead counsel in class
actions involving money damages—when it deems an action to be worthy—the
financial incentives between any given class and its respective class counsel are
realigned. While private attorneys seek the maximum amount of attorney’s fees,
even if it comes at the expense of the client, government lawyers do not have the
same motivation. Adding an amendment to Federal Rule of Civil Procedure 23
permitting qui tam litigation would allow the government to act as a gatekeeper for
class actions while leaving the option open for private attorneys to bring suit should
the government decide not to do so. By providing different channels of enforce-
ment, the amendment offers a promising opportunity to better deter private sector
misconduct, discourage frivolous suits, and improve the overall outcomes for plain-
tiff classes.

In Ford Motor Co. v. Montana Eighth Judicial District Court, the Supreme Court
heard a challenge to specific personal jurisdiction brought under the “arising out of
or relating to” prong (also referred to as the “arising out of” prong) of the min-
imum contacts test for only the second time. In attempting to evade jurisdiction for
injuries caused by defective cars in Montana and Minnesota, Ford argued that
because the specific cars at issue were not originally sold in those fora, its pur-
poseful contacts with the state did not proximately cause the injury at issue, and
therefore the injuries did not “arise out of” those contacts. Ford’s argument is based
on a misreading of Bristol-Myers Squibb Co. v. Superior Court, the only case in
which the Court analyzed that prong of the minimum contacts test. This Note seeks
to explore the development and purposes underlying the “arising out of” prong,
concluding that its purpose is to ensure a sufficient connection between the forum
and the underlying claim such that the state has a legitimate regulatory interest and
that litigation in the forum is convenient. After describing the development and
purpose of the “arising out of” prong and contrasting it with the purpose under-
lying the “purposeful availment” prong, this Note addresses the ways in which chal-
lenges to jurisdiction are brought when it is unclear if the claim arises in a
particular forum. This Note then takes on the Ford case and discusses how the
Supreme Court’s decision fits into the framework describing what work the “arising
out of” prong is doing in the jurisdictional analysis.

After decades in which agricultural land could only be owned by farmers, Taiwan’s
2000 amendments to the Agricultural Development Act opened up the farmland
market to non-farmers. This decision, along with Taiwan’s accession to the World
Trade Organization and the increasing globalization of trade, has had effects on an
agricultural landscape that has traditionally consisted largely of smallholder
farmers. This Note explores the 2000 amendments within both the historical context
of first- and second-stage land reform in Taiwan and the current context of third-
stage land reform and trade liberalization. The effects are far-reaching—the most
expensive farmland in the world, escalating non-agricultural use, fields left idle.
This Note raises questions about the role of agriculture in developed societies and
discusses the nuanced nature of farmland market deregulation.

District attorneys are responsible for the vast majority of criminal prosecutions in the United States, and most of them are elected by the public from prosecutorial
districts. Yet these districts are massively malapportioned, giving rural, dispropor-
tionately white voters significantly more voting power over their district attorneys
than urban voters, who are more likely to be voters of color. At the same time, our
district attorney system is characterized by the sorts of political process failures that
both triggered the Supreme Court’s Apportionment Revolution—requiring that leg-
islative and executive districts comply with one-person, one-vote—and justify judi-
cial intervention in other voting rights contexts. This Note argues that extending
one-person, one-vote to prosecutorial districts would meaningfully address
prosecutorial political process failure and have a number of salutary effects on our
democracy: It would rebalance the distribution of voters’ influence over district
attorneys, producing salutary downstream effects on our criminal justice system; it
may increase challenger rates, leading to healthier levels of prosecutorial demo-
cratic competition; and it would further core democratic norms, including respect
for the equal dignity of voters.

Private markets have exploded. This growth has created lucrative opportunities for businesses raising capital and those who qualify to invest. For decades, Securities and Exchange Commission (SEC) rules have restricted most private investments to “accredited investors,” a designation that, for members of the general public, was based exclusively on affluence. While critics of this regime have emphasized its role in exacerbating inequality, scholarship has neglected the economic divide between white and Black Americans specifically. This Note fills that void.

In August 2020, the SEC issued the first update to the accredited investor standard since its genesis in the 1980s. Using available data, this Note argues that the accredited investor regime—historically and as amended—systematically excludes Black investors and Black-owned businesses from private markets, which both perpetuates racial inequality and depresses the value of those markets. This Note proposes a framework for an Administrative Procedure Act lawsuit charging that the Securities Act required the SEC to consider these distributional effects when modernizing the accredited investor standard. Finding that the SEC failed to satisfy this statutory requirement and omitted other relevant data, this Note concludes that the accredited investor update was arbitrary and capricious in violation of the Administrative Procedure Act. It then offers guidance on how the agency can remedy its error and avoid repeating it in the future.

Line-level immigration officers have virtually unreviewable discretion to deny noncitizens the ability to enter the United States. This power extends not only to those who enter without inspection or arrive with counterfeit documents, but also to those who travel to the United States with the U.S. government’s express permission—i.e., visa holders. These noncitizens can unwittingly be caught up in the expedited removal process, which affords only minimal procedural safeguards and heavily circumscribes judicial review of officers’ actions. This Note argues that, despite these limitations, federal habeas courts should take advantage of their ability under the statute to inquire into whether an expedited removal order in fact was issued. In particular, courts should insist upon compliance with critical procedures required by the agency’s own regulations, without which an expedited removal order may be said not to exist at all. Informed by fundamental principles of administrative law, such an insistence on procedural compliance could help correct some of the worst abuses of the system notwithstanding the lack of constitutional due process protections for arriving noncitizens.

Police officers lie. About nearly every aspect of their work and at every stage of the criminal legal process—in arrest paperwork, warrant affidavits, courtroom testimony, and disciplinary proceedings. The primary scholarly account of police perjury frames the problem as one that emerged largely after the Supreme Court decided Mapp v. Ohio, which made the Fourth Amendment exclusionary rule applicable in state criminal proceedings. But a gap exists in the literature, one this Note seeks to fill: Scholars have neglected to consider whether, and to what extent, police lied before Mapp. By reaching into the historical record, this Note uncovers a rich tradition of rank perjury dating back to the origins of modern policing.

Building on the insight that police have lied for as long as police have existed, this Note sketches an abolitionist framework for police perjury. A structural understanding better accounts for the fact that police lies legitimate police power and figure prominently in two other features of modern policing—racialization and violence. In offering a new framework to understand the perjury problem, this Note joins the growing chorus of scholars, organizers, and activists calling for defunding and dismantling the police.