Topics

Advocates are hoping that employment discrimination based on sexual orientation and gender identity will soon be outlawed under Title VII. To this end, the Supreme Court is currently considering whether Title VII already prohibits those forms of discrimination, and legislators have advanced the Equality Act, a new bill that would explicitly protect lesbian, gay, bisexual, and transgender employees. These debates, however, typically overlook a critical question: Does Congress actually have the authority to hold state governments accountable for discriminating against LGBT workers? This Note argues that Congress does. While Congress exercises its power to enforce the Fourteenth Amendment under the constraints of the Court’s “congruence and proportionality” standard, none of the limitations set by the Court foreclose the Equality Act’s provisions imposing liability on state employers. If the Court takes congruence and proportionality seriously, those provisions should stand. This Note thus challenges the conventional wisdom that LGBT individuals are beyond Congress’s power to protect merely because the Court does not formally review anti-LGBT discrimination under heightened scrutiny. It seeks to account for the Court’s clear concern with state action rooted in animus, which indicates that classifications targeting LGBT individuals are subject to careful judicial review. Moreover, it recasts the Court’s precedents on congressional enforcement, emphasizing that the legislative record and statutory scope, rather than the applicable standard of review, determine the validity of the statute in question. Under these clarified standards, the Equality Act emerges as appropriate enforcement legislation. 

As of January 1, 2019, the federal government held more than 51,000 noncitizens in immigration detention. Over the course of a year, nearly half a million noncitizens will pass through Department of Homeland Security custody within the interior of the United States while the government initiates proceedings to remove them from the country. Many of those detainees pursue immigration relief and contest both their detention and removal. However, numerous reports from the Office of the Inspector General and immigration practitioners consistently observe substantial barriers to effective communication from detention: Detainees are frequently held in or transferred to isolated locations, detention facilities often do not provide adequate telephone access or even alternative forms of communication, and facilities often deny or substantially delay in-person meetings with attorneys or other visitors. These barriers significantly affect the ability of unrepresented detainees to gather and present relevant evidence critical to litigating their removal claims. They also undermine essential communication between legal counsel and the detainees they represent in those proceedings. 

This Article argues that due process imposes affirmative obligations on the government to facilitate evidence gathering and communication with legal counsel for those noncitizens that it detains. While previous scholarship has advanced arguments for “immigration Gideon”—i.e., suggesting noncitizens should have a right to appointed counsel at state expense—our intervention instead focuses on how conditions of confinement that impair communication with counsel and evidence gathering may themselves run afoul of noncitizens’ Fifth Amendment due process rights. 

We offer a novel interpretation of recent Supreme Court and circuit court precedents on civil detention in order to ground noncitizens’ right to communicative access in the Fifth Amendment and propose a new framework for evaluating noncitizens’ rights to effective communication. Importantly, we also argue that the scope of noncitizen detainees’ rights to communicate with counsel should not be determined by the stark division between criminal and civil detention precedents. Rather, noncitizens’ access to counsel rights should encompass the procedural protections due process requires whenever the government acts as both initiator of adverse legal proceedings and jailor, including those protections traditionally associated with the Sixth Amendment. Our analysis finds that the scope of governmental obligation to provide communicative access derives from the noncitizens’ liberty interest in avoiding both detention and deportation and, in particular, follows from the government’s dual role in immigration proceedings as both initiator of adverse proceedings and jailor. The obligation to ensure a “full and fair” hearing requires that the government not impose barriers to communication that provide it with an unfair advantage in the litigation of noncitizens’ removal claims. 

We conclude that the Fifth Amendment’s Due Process Clause imposes affirmative obligations for the government to facilitate evidence gathering and communication between noncitizen detainees and their counsel. While the scope of the state’s affirmative obligations may vary in accordance with the immigration status of the detainee, we argue that in all cases the Fifth Amendment requires the federal government to provide detained noncitizens adequate means to solicit legal representation, meet privately with retained counsel, communicate with potential witnesses, access necessary records, and prepare evidence and testimony. Conditions of confinement that frustrate these basic guarantees offend the Fifth Amendment’s protection of a full and fair hearing and should be held unconstitutional. 

When the police suspect a driver is breaking the law, the Fourth Amendment allows them to stop the car. This means compelling the driver to bring the car to a halt. Sometimes a car stop will lead to further investigation, searches, and even arrests. What will these stops look like when people no longer drive their cars and police officers no longer pursue them by driving their own? Autonomous cars are not yet commonplace, but soon they will be. Yet little attention has been paid to how autonomous cars will change policing. The issue matters enormously because today the police spend a lot of time stopping cars. For instance, the most common contact most adults in the United States have with the police takes the form of a traffic stop. Vehicles equipped with artificial intelligence and connected both to the internet and one another may be subject to automated stops. The issue is already being discussed as a theoretical possibility and as a desirable policing tool. This essay considers the law and policy issues that will arise when car seizures become remote and automated.

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturalization as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on summary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship.

The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives.Nonetheless, the Court has set a number of significant limits on the government’s attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration’s current litigation policy. This Article argues that stripping Americans of citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by theCitizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturaliza- tion undermines the constitutional safeguards of democracy.

Algorithms are capable of racism, just as humans are capable of racism. This is particularly true of an algorithm used in the context of the racially biased criminal justice system. Predictive policing algorithms are trained on data that is heavily infected with racism because that data is generated by human beings. Predictive policing algorithms are coded to delineate patterns in massive data sets and subsequently dictate who or where to police. Because of the realities of America’s criminal justice system, a salient pattern emerges from the racially skewed data: Race is associated with criminality in the United States. Because of the “black-box” nature of machine learning, a police officer could naively presume that an algorithm’s results are neutral, when they are, in fact, infected with racial bias. In this way, a machine learning algorithm is capable of perpetuating racist policing in the United States. An algorithm can exacerbate racist policing because of positive feedback loops, wherein the algorithm learns that it was “correct” in associating race and criminality and will rely more heavily on this association in its subsequent iterations.

This Note is the first piece to argue that machine learning-based predictive policing algorithms are a facial, race-based violation of the Equal Protection Clause. There will be major hurdles for litigants seeking to bring an equal protection challenge to these algorithms, including attributing algorithmic decisions to a state actor and overcoming the proprietary protections surrounding these algorithms. However, if the courts determine that these hurdles eclipse the merits of an equal protection claim, the courts will render all algorithmic decision-making immune to equal protection review. Such immunization would be a dangerous result, given that the government is hurling a growing number of decisions into black-box algorithms.

In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful factual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare.

In concluding that the California law is unconstitutional, the Court’s decision has enormously important implications. It puts all laws requiring disclosures in jeopardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitutionally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the interests at stake in its decision, and applied a more demanding standard based on content of speech.

But NIFLA v. Becerra is only secondarily about speech. It is impossible to understand the Court’s decision in NIFLA v. Becerra except as a reflection of the conservative Justices’ hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion.

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.