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St. John's Law Review
Number of Followers: 1  Open Access journalISSN (Print) 0036-2905 Published by St. John's University  [1 journal]
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- Offshore Wind Energy or Domestic Seafood' How the Department of the
Interior Can Facilitate Both Through Self-Binding Procedures
Authors: Adele Irwin
Abstract: (Excerpt)The United States has many identities, including that of a coastal nation. With the largest Exclusive Economic Zone (“EEZ”) in the world, the United States has jurisdiction over more human activity in the ocean than any other country. Like people in most coastal nations, Americans are drawn to the ocean. Almost forty percent of the population lives in coastal counties that constitute less than ten percent of the nation’s land mass, and 58.3 million jobs and more than $9.5 trillion of gross domestic product are attributable to ocean resources annually. These figures have increased over time.The diverse industries supporting these ocean-centered jobs and income include transportation, shipping, tourism, recreation, energy, minerals, national defense, research and education, and fishing, all of which require access to the ocean’s seemingly endless, but finite, resources. The government is tasked with the job of ensuring that these industries coexist, which grows more difficult as demand for ocean resources increases. Today, the future of the commercial fishing industry is particularly uncertain, due in part to both increased competition with other ocean users and climate change. This makes the development of offshore wind farms—a countermeasure to the long-term threat of climate change but an aggravator of short-term demands for ocean space—a true Catch-22 for fishermen.For coastal governments, it may be easy and even feel necessary to overlook offshore wind energy impacts on fishing. Climate change is an imminent and no longer hypothetical threat to our way of life. Having failed to meaningfully address this problem to date, we are cramming for the metaphorical exam in what has been termed the “Critical Decade” before we reach a point of no return. But the commercial fishing industry’s role in the nation’s economy, food security, and heritage suggests that it should not be overlooked, and that while addressing climate change we should avoid damaging industries like commercial fishing in the process. Congress also mandated this avoidance in the Energy Policy Act of 2005 (“EPAct”).
PubDate: Tue, 21 Mar 2023 12:52:22 PDT
- Was the Colonial Cyberattack the First Act of Cyberwar Against the U.S.'
Finding the Threshold of War for Ransomware Attacks
Authors: Liam P. Bradley
Abstract: (Excerpt)On May 7, 2021, “DarkSide,” a foreign hacker group, conducted a ransomware attack against the Colonial Pipeline (“Colonial”). That morning, Colonial discovered a “ransom note demanding cryptocurrency.” The attack forced the shutdown of the Colonial Pipeline, stopping the daily delivery of 2.5 million barrels (MMBbls) of “gasoline, jet fuel and diesel” to the East Coast. The shutdown created fuel shortages, impacted financial markets, and panicked the public. The resulting fuel shortages and economic impacts “triggered a comprehensive federal response” on May 11, 2021. On May 12, CEO Joseph Blount paid a ransom of nearly $5 million in bitcoin to restore control. The federal government treated the attack as a cybercrime, ultimately seizing and returning some of the ransom payment.Ransomware attacks, like the attack against Colonial, are the leading type of cyberattack. Norton Security estimated that in 2021, “there [would] be a ransomware attack on businesses every 11 seconds.” While a majority of cyberattacks are treated as matters for law enforcement, critical questions arise when the attack is a matter of national security. At what point does a cybercrime become more than a cybercrime' At what point is the attack an act of war' Here, the Colonial cyberattack provides a case study for analyzing whether a ransomware attack on critical infrastructure constitutes an act of war. Creating a threshold for acts of cyberwar is critical to developing future strategies to deter cyberattacks and avoid a so-called “Cyber–Pearl Harbor.”This Note argues that the Colonial cyberattack was an act of cyberwar because the attack crossed a six-factor threshold developed from both domestic and international “laws of war.” Therefore, the federal government can respond to the Colonial cyberattack with military force as authorized under 10 U.S.C. § 394 and subsequent presidential policy directives (“PPDs”). Under this statute, a military response could have been led by U.S. Cyber Command (“USCYBERCOM”) or conventional military forces.Part I of this Note discusses ransomware and the current domestic and international legal frameworks behind cybercrime and cyberwarfare. Part II creates a six-factor threshold for cyberwar developed from the law and argues that the Colonial cyberattack crossed that threshold into cyberwar. Further, this Part describes what a military response under 10 U.S.C. § 394 would look like. Finally, while this Note identifies the ability to use military force, such force should only be used proportionally and as a means of self-defense or deterrence.
PubDate: Tue, 21 Mar 2023 12:52:20 PDT
- Dropping the Ball: How the Growth of Legalized Sports Betting Threatens
the NIL Rights of Collegiate Athletes
Authors: Peter Klensch
Abstract: (Excerpt)One of the more storied runs in college basketball history happened in 2014 when the seven-seeded University of Connecticut Huskies (“UConn”) made the Final Four and defeated the University of Kentucky Wildcats to win the Division I Men’s College Basketball Tournament. As the second-lowest seed ever to win the Tournament, the focus should have been on UConn’s celebration in Storrs, Connecticut. Instead, the national media was drawn to comments made by UConn’s star point-guard, Shabazz Napier, who said that he sometimes went to bed “starving.”The remarks caught the immediate attention of state legislators in Connecticut. Representative Matthew Lesser said, “he’s going to bed hungry at a time when millions of dollars are being made off of him. . . . This isn’t a Connecticut problem. This is an NCAA problem . . . .” The National Collegiate Athletic Association (“NCAA”) is a money-making behemoth, generating $1.15 billion in revenue in 2021 alone, and annually signing multi-billion-dollar television deals for its two major sports, Division I men’s basketball and football. While Shabazz’s remarks were not the first to be made about the disparity between college players and their institutional overlords, the comments brought the issue of paying college athletes back to the national forefront. Two other college athletes, Shawne Alston and Justine Hartman, were soon to make noise of their own by challenging the NCAA in a landmark antitrust lawsuit. The impact of NCAA v. Alston, which barred the NCAA from restricting education-related benefits for student-athletes, and the surrounding state name, image, and likeness (“NIL”) laws have created a brand new market for student-athletes to receive endorsements and benefits outside the confines of the university.At the same time, another groundbreaking legal decision flipped the sports world on its head. In Murphy v. NCAA, the Supreme Court lifted the ban on state-legalized sports betting; states were now free to enact their own individual sports betting laws. Since June 2018, more than $186 billion has been wagered on sports, including $8.5 billion on the 2019 Division I Men’s NCAA Tournament alone. As the sports betting industry continues to grow and become more accessible to the everyday fan, so too does it widen its reach into college sports and to the athletes themselves. But, what happens when sports betting companies begin to endorse college athletes'This Note will address the fallout of the Supreme Court’s recent decision in Alston, state NIL laws, the legal gray area they have created, and their intersection with the growth of legalized sports betting in the United States. To protect student-athletes and avoid disrupting the competitive nature of the NCAA, this Note will argue for legislative and institutional action to limit players from entering into endorsement contracts, specifically with casinos, sports betting companies, or gambling-related entities. Part I of this Note will explore the history of amateurism and competition in college sports and the legal history of sports betting. Part II will examine antitrust lawsuits against the NCAA, the Alston ruling, the impact of NIL laws, and the specter of sports gambling that hangs over these legal decisions. Finally, Part III will highlight potential solutions, specifically congressional proposals and NCAA action.
PubDate: Tue, 21 Mar 2023 12:52:17 PDT
- In Defense of Moses
Authors: Tamar Meshel
Abstract: (Excerpt)In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. For instance, the Court’s holdings that the Act applies in both federal and state courts and in employment disputes, and that it preempts contradictory state law, are frequently accused of being overly expansive and prejudicial to weaker individuals such as employees and consumers, prompting initiatives for legislative amendments of the FAA.In this article I intend neither to sanction nor to dispel these accusations. Instead, on the occasion of its 40th anniversary, I revisit the Supreme Court’s seminal decision in Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. (hereinafter Moses). A renewed examination of this decision is timely and necessary given growing calls for its reconsideration. In Moses, the Supreme Court held that § 2 of the FAA, which mandates that arbitration agreements “shall be valid, irrevocable, and enforceable,” manifests “a congressional declaration of a liberal federal policy favoring arbitration agreements.” This federal policy, according to the Court, in turn gives rise to what has become known as the “presumption . . . in favor of arbitration” (Presumption). According to the Moses Presumption, “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . . . .”Hundreds of lower court decisions have applied the Presumption in FAA cases since Moses. At the same time, the Presumption has also been accused of elevating arbitration agreements above other contracts without any basis for doing so in the FAA, and of “divert[ing] courts from the best reading of the text at the first hint of uncertainty, and thereby work[ing] a massive alteration of written contracts in America.” In the face of growing calls for the Moses Presumption to be reconsidered, it is likely that litigants will attempt, sooner or later, to challenge it before the Supreme Court. This is the first article to defend the Presumption.
PubDate: Tue, 21 Mar 2023 12:52:14 PDT
- Beyond Section 230 Liability for Facebook
Authors: Nancy S. Kim
Abstract: (Excerpt)In October 2021, a former Facebook employee, Frances Haugen, publicly revealed that the company's internal research documented harms that its products caused some of its users. The company’s response was sadly predictable. It questioned the reliability of Haugen’s testimony, asserted its commitment to doing the right thing, and then diverted the public’s attention by changing its name to Meta. The company’s deny-and-distract tactics were, by now, all too familiar and provided few answers.More than any other platform company, Facebook has found itself at the center of controversy. Its advertisement-supported business model relies upon user engagement which means that its algorithms often, even if unintentionally, promote content that is false, divisive, and harmful to its users. The company profits handsomely from scams that proliferate on its site. Its practices governing data collection and online tracking activities are dubious at best.Yet, despite all the hand wringing and negative commentary about the legality and ethicality of its business, Facebook continues to engage in practices with harmful social consequences. According to a Wall Street Journal investigation referred to as the “Facebook Files,” the company’s own research documented the harms that its products inflict upon its users and society. How then has Facebook managed to get away with it for so long'In the absence of regulation, the public depends upon private citizens to claim their rights and redress their wrongs in a court of law. When companies deploy new technology and new business models, legislators and regulators are often slow to react. Consequently, the legality of these new practices is often litigated in court, typically in a class action lawsuit brought against the company. The imposition of civil liability is especially critical in Facebook’s case because the company has been famously evasive about its internal research and what it knows about its products. A lawsuit could be an important way to compel Facebook to disclose some of that information.However, platform companies such as Facebook typically escape liability for content on their websites because of the immunity provided by section 230 of the Communications Decency Act. They claim that they are not publishers of content. Instead, they argue, they merely provide a platform for the distribution of content created by others. As mere platforms, courts have held that they are not responsible for defamatory or harmful content on their websites, even if they occasionally exercise removal or moderation power.
PubDate: Tue, 21 Mar 2023 12:52:12 PDT
- Activist Extremist Terrorist Traitor
Authors: J. Richard Broughton
Abstract: (Excerpt)Abraham Lincoln had a way of capturing, rhetorically, the national ethos. The “house divided.” “Right makes might” at Cooper Union. Gettysburg’s “last full measure of devotion” and the “new birth of freedom.” The “mystic chords of memory” and the “better angels of our nature.” “[M]alice toward none,” “charity for all,” and “firmness in the right.” But Lincoln not only evaluated America’s character; he also understood the fragility of those things upon which the success of the American constitutional experiment depended, and the consequences when the national ethos was in crisis. Perhaps no Lincoln speech better examines the threats to civil order and American constitutional government than his 1838 address to the Young Men’s Lyceum of Springfield, Illinois: “The Perpetuation of Our Political Institutions.” Indeed, perhaps no speech is better suited to the dangers that American government and politics now face in our time.The Lyceum speech first critiques mob violence and lawlessness, then addresses threats to institutions and order from political leaders themselves. Lincoln first extols the virtues of American political institutions, but acknowledges that if danger “ever reach us, it must spring up amongst us.” The omen America then faced, Lincoln says, citing mob violence, was the “increasing disregard for law which pervades the country.” He laments “the growing disposition to substitute the wild and furious passions” for the authority of courts, and “the worse than savage mobs” for executive authority. A “mobocratic spirit” takes hold when government is unable, or unwilling, to protect the citizenry from lawlessness and violence—and breaks the attachment of people to their government. These mobs regard “Government as their deadliest bane,” and “make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation.” Lincoln confessed that bad laws exist and that legal remedies for legitimate grievances sometimes do not. But “[t]here is no grievance that is a fit object [for] mob law.”Lincoln’s answer: to make reverence for the law the Nation’s “political religion,” upon the altars of which Americans should “sacrifice unceasingly.”Lincoln then asks why this state of affairs would pose a danger now to our political institutions; why is the risk now greater than before' As the American experiment has succeeded, the chase for national success feels concluded: “This field of glory is harvested, and the crop is already appropriated.” But, he says, “new reapers will arise, and they, too, will seek a field.” New political leaders—tyrants and demagogues, really—will not be satisfied to carry on the political institutions and traditions that the founding generation created. “Towering genius,” he says, “disdains a beaten path.” These new leaders will seek distinction of their own, possessing not only genius but “ambition sufficient to push it to its utmost stretch.” And in doing so, they may seek to tear down those solid institutions and traditions that have been built.
PubDate: Tue, 21 Mar 2023 12:52:09 PDT
- Statutory Interpretation and Agency Disgorgement Power
Authors: Caprice Roberts
Abstract: (Excerpt)In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.What happens when obstacles foreclose claims and threaten to leave parties without adequate relief' Or, when the cause of action escapes conventional classification' Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies' Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach' It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is a gain-based profits remedy rooted in both restitution law and equity power. My earlier work focused on private law implications of this powerful form of relief, including its ability to fill gaps between common law causes of action. That research identified dangers including exceeding unjust enrichment’s purpose by punishing without punitive power and without proper procedural guards. Without restraint, the remedy threatens to destroy. With restraint, disgorgement holds promise for capturing unjust gains and deterring egregious wrongs.Of course, equity doesn’t hold allure for all. Or, more specifically, skepticism and misunderstanding surrounds equitable remedies, equitable defenses, and enduring equitable principles. Equity at its worst risks being unbounded, arbitrary, unpredictable, and unfair. However, development of equity and corrective measures introduces limits to address equity’s primary flaws. Modern skepticism about equity is likely more about disinterest than opposition to equitable principles. Disinterest stems from the assumed irrelevance of equity in modern civil litigation because of the almost total elimination of separate courts of equity in the United States. Procedural reforms streamlined civil procedure to merge law and equity. A common misperception is that the erasure of separate courts and the procedural merger of law and equity means that equity has vanished. This myth leads to an assumption that there is no need to understand equity, but this logic is wrong. The law-equity distinction remains critical in the determination of rights to a jury trial versus discretionary judge-based determinations. Equitable defenses remain a part of a modern equitable system. They also continue to thrive as shields from equitable remedies. Some advocate complete fusion of equity into law for a more functional and less anachronistic legal system. Still, the import of equity remains. Modern equity is on the rise, and it is ripe for continued refinement.
PubDate: Tue, 21 Mar 2023 12:52:06 PDT
- Volume 96, Number 2
PubDate: Tue, 21 Mar 2023 12:52:01 PDT
- The “Especially Heinous” Aggravator: Sharpshooter Bonuses Do Not
Belong in Capital Sentencing Law
Authors: Taylor Lopa
Abstract: (Excerpt)In capital cases, the jury is often left with the onerous decision about whether to impose the death penalty. To help jurors make sentencing decisions, judges will instruct them on how to apply the law. As one juror summarized, “[The judge told us] that we were to make our decision on the basis of his instructions and the law, not what we felt, not what we thought ought to be.” Because of jury instructions like this, jurors know that they must base sentencing decisions on the law rather than their personal beliefs. But what happens when the law itself leaves jurors to make decisions about who lives or dies based on the sentencers’ subjective beliefs'Fortunately, states that allow capital punishment have statutes outlining circumstances that sentencers must find present before they can choose to sentence the defendant to death. Usually, these statutes specify aggravating circumstances that, according to the legislature, set capital murder apart from normal first-degree murder cases. One type of aggravating circumstance, however, asks the jury to take part in that determination. Specifically, this aggravating circumstance allows jurors to impose the death penalty if they determine “[t]he murder was especially heinous, atrocious, or cruel.” This aggravating factor is controversial because, unlike most, the especially heinous, atrocious, or cruel (“HAC”) aggravator does not measurably narrow the class of people eligible for capital punishment. Because the HAC aggravator is vague and essentially asks ordinary people to determine whether an unjustified killing is “particularly bad,” a juror could find that any murder meets this standard.
PubDate: Wed, 16 Nov 2022 11:38:22 PST
- Vulnerability as a Launching State: Why the United States Should Adopt
Explicit Indemnification Procedures in Response to the Growth of the
Commercial Space Industry
Authors: Mollie Carney
Abstract: (Excerpt)This Note argues that the current United States launch license requirements should be amended to include explicit indemnification procedures, should the United States be held liable for damages as a Launching State under the Liability Convention. Part I of this Note examines the evolution of the space industry from a field marked by Cold War tensions to one that is dominated by private industry, and the risks that are associated with the rapid growth of the commercial space industry. Part II will explain the current legal regime by (1) setting a framework of liability generally, (2) examining the Liability Convention of 1972, and (3) examining the current United States regulations regarding launch licensing requirements. Part III of this Note will analyze the shortcomings of the current United States regulations, namely the lack of specific indemnification procedures. Lastly, Part IV will compare the regulations of the United States with those of other nations which have sophisticated commercial launch providers, namely Australia and France, to examine how explicit indemnification procedures may be implemented.
PubDate: Wed, 16 Nov 2022 11:38:20 PST
- Imperialism in the Making of U.S. Law
Authors: Nina Farina
Abstract: (Excerpt)This Article proceeds in two parts. In Part I, “U.S. Foreign Policy as Racial Policy,” I identify the four key policy pillars of U.S. imperialism: militarism, unilateral coercive measures, foreign aid, and the deployment of the dollar. I then pivot to a brief history of U.S. imperialism in the Middle East, highlighting the geographic and racial specificities that influence the ideological and legal contours of U.S. imperialism. I end this section with an analysis of The Public Report of the Vice President’s Task Force on Combatting Terrorism (1985), which was a defining document in the making of anti-terrorism law in the United States and in U.S. foreign policy. In Part II, “The Emergence of Terror as a Legal Category,” I focus on what the F.B.I. has called the first terrorism prosecution, colloquially known as the Los Angeles 8 case. It is one of the longest and most significant cases in U.S. immigration law and national security policy, but has received very little attention by the academy and beyond. I end the Article with a discussion of how the L.A. 8 case influenced the passage of the Antiterrorism and Effective Death Penalty Act (1996) and the Illegal Immigration Reform and Immigration Responsibility Act (1996), thereby influencing both the First and Fifth Amendments and their respective availability to non-citizen dissidents. Ultimately, this Article reveals how imperialism has come to be both a governing and structuring influence in lawmaking, even though it may be absent from the letter of the law. To recount this legal history, I draw on interviews with the judge on the L.A. 8 case, Judge Bruce Einhorn, as well as the lawyers and their clients. I also review the case files, depositions, briefs, and court decisions. Additionally, I conduct archival research at the Ronald Reagan Presidential Library. I also analyze the influence of international legal mechanisms and institutions and conclude with the statutory law that emerged out of the prosecution.
PubDate: Wed, 16 Nov 2022 11:38:18 PST
- Assessing a Cooperative Writing Process in an Undergraduate Legal Writing
Course
Authors: James A. Croft
Abstract: (Excerpt)I teach legal writing to undergraduate students, and I primarily do so by cooperatively writing with them, using instructional time to work through the students’ writing assignments as a class. I arrived at this process organically over several years. When I first started teaching, I was surprised by the disconnect between my expectations regarding student writing and student performance. To attempt to close that gap, I began going through parts of the research and writing process cooperatively with my students in class, and increasing the amount of work that we did together each semester until, in the semester assessed in this study, the bulk of our class time was spent collectively working through the students’ writing assignments.
PubDate: Wed, 16 Nov 2022 11:38:15 PST
- The Last Lecture: State Anti-SLAPP Statutes and the Federal Courts
Authors: Charles W. Adams et al.
Abstract: (Excerpt)An old proverb says that “when the student is ready[,] the teacher appears.” In this collaborative effort, a civil procedure law professor has partnered with his former student to address one of the most challenging topics to confront the federal courts in recent times: whether state anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. The acronym “SLAPP” stands for “Strategic Lawsuits Against Public Participation.” Anti-SLAPP statutes are a spate of state legislation of recent vintage, designed “to give more breathing space for free speech about contentious public issues” and to “try to decrease the ‘chilling effect’ of certain kinds of libel litigation and other speech-restrictive litigation.” The most stringent anti-SLAPP statutes serve strong measures to accomplish their goals: an accelerated dismissal procedure soon after suit is filed; a complete stay of discovery; the plaintiff must, at the pleading stage, come forward with evidence to establish her prima facie trial burden; mandatory attorney’s fees and costs to the prevailing defendant; and an immediate appeal if the trial court denies the dismissal motion.
PubDate: Wed, 16 Nov 2022 11:38:13 PST
- Volume 96, Fall 2022, Number 1
PubDate: Wed, 16 Nov 2022 11:38:10 PST
- White Picket Fences & Suburban Gatekeeping: How Long Island’s Land Use
Laws Cement Its Status as One of the Most Segregated Places in America
Authors: Jessica Mingrino
Abstract: (Excerpt)The average wealth of Black families is one-seventh that of white families in the United States today. Homeownership—the primary avenue through which Americans accumulate personal and generational wealth—is the leading driver of the wealth disparity between white and Black American families, known as the “racial wealth gap.” The systematic and intentional exclusion of Black people from developing communities during the twentieth century largely excluded people of color from the housing boom and denied them the opportunity afforded to white people to multiply their assets. Contrary to widespread belief, however, legislation-backed oppression of Black Americans did not end in the twentieth century. Many current land use and housing policies unnecessarily drive up home prices and make it difficult for traditionally disadvantaged individuals like low-income Black Americans to move into traditionally white communities, prolonging segregation in the United States. As one of the most segregated areas in the United States, Long Island, New York serves as a perfect example of how land use regulation disparately impacts people of color, cements the Racial Wealth Gap, and drastically reduces opportunity for economic and community mobility.This Note examines the enduring segregation of Long Island and proposes solutions to counteract the regulations that perpetuate it. Part I of this Note reviews the pervasive role racism has played in shaping Long Island’s historical land use framework. Part II examines common land use regulations utilized on Long Island and their disparate impact on historically disadvantaged communities like Black Americans. Part III discusses barriers to the modification of these regulations. Finally, Part IV demands that New York State enact comprehensive legislation to catalyze desegregation and incentivize equitable community development on Long Island.
PubDate: Wed, 07 Sep 2022 13:09:57 PDT
- Separate and Unequal: Promoting Racial Equity in Public Schools in the
United States and South Africa
Authors: Paige Sferrazza
Abstract: (Excerpt)On January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court’s new conservative majority, where they “pose the gravest threats yet” to over forty years of judicial precedent approving the use of race as a non-determinative factor in undergraduate admissions.The United States is divided over how and whether public schools may legally consider race when seeking equity in access to public education. Though the Supreme Court declared de jure racial segregation in public schools unconstitutional under the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education, the United States’ public school system today remains “largely separate and unequal.” Students of color “are more racially and socioeconomically isolated today than at any time since data have been available,” and “nonwhite” school districts receive $23 billion less in funding than white school districts that serve the same number of students. Racially concentrated minority schools have lower levels of academic achievement, inferior resources, higher teacher turnover rates, and less rigorous curricular opportunities. Moreover, racially isolated schools severely limit interaction between students from different backgrounds.In attempting to remedy these disparities—which stem from the United States’ slow redress of slavery, segregation, and discrimination—the United States has grappled with whether institutions should explicitly consider students’ race in their integration and diversity policies. In Brown, the Court analyzed racial discrimination and segregation’s social effects on Black students and prohibited state practices that reinforced the inferiority of historically oppressed populations, thereby explicitly addressing remedy in relation to race. In cases immediately subsequent to Brown, the Court upheld race-conscious desegregation efforts, remedies, and public school policies, affirmatively embedding antisubordination principles into the law.
PubDate: Wed, 07 Sep 2022 13:09:54 PDT
- A Potential Status Update for the Visual Artists Rights Act: The Role of
Social Media Response in Judicial Analysis of Recognized Stature
Authors: Olivia Calamia
Abstract: (Excerpt)In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a part of history . . . . We can teach kids in the future that this is what happened in 2020, and there are different artists that were coming out and putting beautiful stuff up that can impact the future.”With the creation of artwork comes the question of how such artwork can be preserved. The Visual Artists Rights Act of 1990 (“VARA”) grants visual artists the right “to prevent any destruction of a work of recognized stature.” In February 2020, the Second Circuit held in Castillo v. G&M Realty L.P. that a work of visual art “is of recognized stature when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” In an age when artwork can reach broad audiences via online platforms such as Instagram and Facebook, the question has arisen of what protections, if any, online recognition might provide to works of art. At least one court⎯the district court in Cohen v. G&M Realty L.P., the case that ultimately gave rise to the Second Circuit’s decision in Castillo⎯has explicitly accounted for online and social media response in determining whether certain works of art had achieved recognized stature. Moreover, in the legal community, the thought is emerging that the expansive reach of online platforms can help cement the stature of works of art, including works of mural and protest art inspired by the Black Lives Matter movement.This Note advocates for a judicial approach to recognized stature analysis under VARA that gives due consideration to online response to artworks while acknowledging and accounting for its limitations. This Note consists of three parts. Part I provides an overview of the “recognized stature” provision of VARA and examines its recent judicial treatment by the Second Circuit and district court in Castillo. Part II explores the potential for courts to factor online response into judicial assessments of whether certain artworks have achieved recognized stature under VARA. More specifically, Part II(A) discusses the role that social media platforms have played in increasing public accessibility to and engagement with art, particularly street art, and Part II(B) discusses the foundations for incorporating online response into recognized-stature analysis and considers some of the merits and complications of such an approach. Finally, Part III recommends that courts expand their analysis to include online response to the extent that courts can extrapolate qualitative information that will help them determine whether a work of art has achieved recognized stature. This approach encourages careful analysis that appropriately accounts for the value that online response can contribute to an artwork’s stature.
PubDate: Wed, 07 Sep 2022 13:09:52 PDT
- Death By Dehumanization: Prosecutorial Narratives of Death-Sentenced Women
and LGBTQ Prisoners
Authors: Jessica Sutton et al.
Abstract: (Excerpt)At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is . . . different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the United States Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”These dehumanizing prosecutorial narratives are particularly problematic—and effective—when used against LGBTQ+ people, whose very identities have been criminalized, pathologized, and used as justification for condemning them to death. Dehumanizing stereotypes not only reinforce and leverage social biases as factors in aggravation, but also creates artificial barriers to connecting with the person charged, “othering” LGBTQ+ defendants in such a way as to minimize the impact of mitigating evidence.This Article explores the use of dehumanizing prosecutorial narratives that target LGBTQ+ people in the pursuit of state-sponsored execution and argues that such narratives violate the Constitution’s protection of the dignity of persons facing the loss of life or liberty. Part I examines the history of dehumanization and criminalization of LGBTQ+ people, particularly those with multiple marginalized identities. Part II sets forth examples of the most common death-seeking portrayals of LGBTQ+ defendants, including the Woman-Hating Gay Predator, the “Hardcore” Man-Hating Lesbian, and the Gender-Bending Deviant. Part III analyzes how these dehumanizing stereotypes further disadvantage LGBTQ+ defendants by undermining mitigating evidence. Finally, Part IV, drawing inspiration from the work of Pauli Murray, proposes a reframing of the constitutional doctrines limiting prosecutorial arguments in support of a death sentence, proposing that a focus on the dignity of the individual and the dignitary harm to the individual should be at the center of the inquiry.
PubDate: Wed, 07 Sep 2022 13:09:49 PDT
- Falling Away Into Disease: Disability-Deviance Narratives in American
Crime Control
Authors: Matt Saleh
Abstract: (Excerpt)Who in society is predisposed to crime' Many of us are familiar with cultural narratives that trace criminal behavior to some cognitive defect in the perpetrator. For instance, we might recall the persistent media allusions to Adam Lanza’s Asperger Syndrome after the mass shooting at Sandy Hook Elementary School, despite evidence that individuals on the autism spectrum are, on average, not more likely, and are quite possibly less likely, to commit serious crime in their lifetime. Similarly, popular narratives about the relationship between “mental illness” and violence are pervasive, despite the broad meaning of the terminology and a deeply-misunderstood relationship between psychiatric disability and crime.From Batman to Bundy, narratives in popular culture that explain crime through allusions to developmental, intellectual, psychiatric, or psychosocial impairments are ubiquitous. In one popular idiom, the disabled offender is “imbecilic” or “mad” to the point of lacking moral volition or free will. In another, the disabled offender is “psychopathic,” antisocial and personality-disordered, but also competent, volitional, and accountable— sometimes terrifyingly so—to the point of evil genius or predation. Tellingly, within these stories and the idioms they render, childlike incompetence and psychopathic aptitude can be difficult to parse, leading to the befuddlement of law enforcement or the courts.Stories are inherently intrigued with cause-and-effect, and so is law. Existing scholarship has highlighted the important role that criminal law, and the carceral state more broadly, have played in constructing the modern understanding of cognitive disability in the West. In particular, tenuously-biomedical constructs of insanity as “disease of the mind,” incompetence, and dangerous mental abnormality in civil confinement under state police power have themselves become cultural memes, helping to form societal understandings—and myths—about the interactions between neurodivergence, criminal predilection, and moral culpability.Law is a social institution that relies heavily on language to develop idiosyncratic models and constructs of reality, defined by consensus from within various legal communities about how a “closed linguistic system should best reflect the outside world.” The title of this essay is attributable to Fiona Campbell’s observation that disability fictions in law—in collusion with biomedical discourses—often construct difference in liminal space where no literal referent exists, “deploy[ing] . . . a ‘compulsion towards terror’ . . . of ‘falling away’ and ‘crossing over’ into an uncertain void of dis-ease.”
PubDate: Wed, 07 Sep 2022 13:09:47 PDT
