Authors:Max Doherty Abstract: On May 13, 2021, in United States v. Dominguez, the U.S. Court of Appeals for the Eleventh Circuit joined a pre-existing circuit split regarding the meaning of “sexual activity” under 18 U.S.C. § 2422 and whether that term requires physical contact between the defendant and the victim. The statute prohibits individuals from coercing or enticing others to participate in illegal sexual activity, including when the victim is a minor. The U.S. Court of Appeals for the Fourth and Seventh Circuits previously reached opposite interpretations of the phrase’s meaning. The court in Dominguez agreed with the Fourth Circuit and held that the phrase did not require the defendant to engage or attempt to engage in physical contact with another individual. This Comment argues that the Fourth and Eleventh Circuits reached the correct interpretation of “sexual activity” as not requiring physical contact. PubDate: Tue, 10 May 2022 08:42:02 PDT
Authors:Christine Abely Abstract: This essay argues that the lack of a federal blanket prohibition against ransomware payments undermines the purpose and effectiveness of the U.S. sanctions regime. The U.S. cyber-related sanctions program suffers from an essential problem of timing: often payments to malicious cyber actors are not prohibited until those actors have been named to the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Yet those actors generally are not so designated until they have been identified as malicious through a completed or attempted attack. Further, the time between a cyberattack and the designation of a party as an SDN is generally not short enough to prohibit the making of a ransomware payment in response to an attack itself. A blanket prohibition against the making of ransomware payments would supplement the OFAC regulations and remedy a structural shortcoming of that regulatory scheme. PubDate: Mon, 09 May 2022 07:09:49 PDT
Authors:Kristen Parnigoni Abstract: In 2020, in United States ex rel. Druding v. Care Alternatives, the United States Court of Appeals for the Third Circuit advanced a broad interpretation of “falsity” under the federal False Claims Act (FCA) to allow conflicting medical opinions on a patient’s medical prognosis as evidence of false certification for hospice eligibility. In doing so, the court rejected a blanket rule that clinical judgments are immune from legal challenge and dismissed an “objective falsehood” requirement because it inappropriately conflated elements of the statute. The holding has important implications in industries with high risk for fraud, particularly the for-profit hospice industry that contracts with Medicare. This Comment argues that the Third Circuit’s liberalization of the falsity element aligns with congressional intent to create broad FCA liability for any attempt to defraud the government. Moreover, the Third Circuit’s approach incentivizes entities that receive federal funding to strengthen internal oversight and compliance programs. PubDate: Thu, 05 May 2022 11:22:35 PDT
Authors:Carina Bentata Gryting et al. Abstract: On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller. PubDate: Thu, 05 May 2022 07:32:06 PDT
Authors:John Landzert Abstract: On February 4, 2021, in Tsao v. Captiva MVP Restaurant Partners, LLC, the United States Court of Appeals for the Eleventh Circuit held that the mere existence of a data breach is insufficient to grant plaintiffs standing to sue the company that exposed their personal information. By doing so, the Eleventh Circuit aligned itself with the Second, Third, Fourth, and Eighth Circuits. In contrast, the Sixth, Seventh, Ninth, and D.C. Circuits have granted standing in such cases. This Comment argues that the Eleventh Circuit properly applied Supreme Court jurisprudence at the time it decided Tsao and, in light of more recent Supreme Court decisions, came to the correct conclusion. PubDate: Tue, 03 May 2022 07:45:07 PDT
Authors:Emily O'Hara Abstract: On May 3, 2021, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit held that a court’s non-binding “strike” recommendation under the Prison Litigation Reform Act (PLRA) did not violate the PLRA or Article III of the United States Constitution. Courts agree that binding strikes are impermissible, but disagree on the underlying reasoning. The Sixth Circuit reasoned that the PLRA, which revokes in forma pauperis filing from indigent prisoner-litigants after three qualifying dismissals, renders binding strikes impermissible before a prisoner accrues three strikes. By resolving the issue using the PLRA, the Sixth Circuit found the constitutional inquiry unnecessary. This Comment argues that the Sixth Circuit’s approach is correct because it aligns with the well-established canon of constitutional avoidance. The Sixth Circuit’s approach also narrows the legal issues in a PLRA ruling, thereby communicating familiar legal principles to under-resourced prisoner-litigants. PubDate: Tue, 03 May 2022 07:45:03 PDT
Authors:Allison Cheney Abstract: On May 7, 2021, in United States v. Bryant, the United States Court of Appeals for the Eleventh Circuit held that the U.S. Sentencing Commission’s policy statement in Section 1B1.13 of the U.S. Sentencing Guidelines binds defendant-filed motions for compassionate release. In its Application Notes, the policy statement provides four “extraordinary and compelling circumstances” that warrant a sentence reduction. Application Note 1(D) is the “catch-all provision” because it states that judges may grant compassionate release for “other reasons” not specifically listed in the preceding Application Notes. Application Note 1(D) states that the Director of the Bureau of Prisons (BOP) defines all “other reasons” under the catch-all provision that qualify an inmate for compassionate release. Before 2018, only the Director of the BOP could file compassionate release motions under 18 U.S.C. § 3582(c)(1)(A). The First Step Act of 2018 amended the statute to allow defendants to file motions too. Because the policy statement still begins with the phrase “upon motion of the Director of the BOP,” courts have since questioned whether it also applies to defendant-filed motions. In a departure from the holdings of the United States Court of Appeals for the Third, Fourth, Fifth, Sixth, Seventh, Ninth and D.C. Circuits, the Eleventh Circuit decided that the policy statement and its corresponding Application Notes apply to defendant-filed motions for compassionate release. Under this interpretation, only the BOP defines the “other reasons” that warrant compassionate release pursuant to Application Note 1(D). This Comment argues that the Eleventh Circuit was incorrect in its interpretation because it disregarded the plain text of the policy statement and erroneously considered the legislative intent of a different statute. PubDate: Mon, 02 May 2022 08:00:24 PDT
Authors:Michele Astor-Pratt Abstract: On April 7, 2021, in Gil v. Winn-Dixie Stores, Inc., the U.S. Court of Appeals for the Eleventh Circuit held that websites are not places of public accommodation pursuant to Title III of the Americans with Disabilities Act. Before the Eleventh Circuit vacated its decision in December 2021, it joined the majority of circuit courts in a split regarding whether Congress intended Title III to apply to websites and other non-physical places. The First, Second, and Seventh Circuits considered Title III’s language broad or ambiguous enough to include web-sites. Conversely, the Third, Fifth, Sixth, Ninth, and Eleventh Circuits held that Title III unambiguously excludes websites and other non-physical places. Although it vacated Gil, the Eleventh Circuit’s reasoning provides valuable insight as to how this court will decide when it hears another Title III appeal in the future. This comment argues that the Eleventh Circuit, with its extremely narrow interpretation of Title III, erred by disregarding the ambiguity of the Act’s language and should have construed the statute in light of Congress’s purpose. PubDate: Fri, 29 Apr 2022 07:54:17 PDT
Authors:Marina F. Rothberg Abstract: Most nations consider the protection of cultural material, such as historical monuments, archaeological sites, and antiquities, to be of utmost consequence. Yet, despite the near-universal importance of safeguarding cultural heritage, domestic protections for cultural material in the United States tend to be difficult to interpret. These ambiguities and gaps allow for continued exploitation and illicit trafficking of cultural heritage. This Note focuses on the legal structures in the United States that safeguard indigenous cultural material. After briefly discussing the rationale behind safeguarding objects of heritage, this Note explores the dominant federal statutes that protect cultural material: the National Historic Preservation Act, Archaeological Resources Protection Act, and Native American Graves Protection and Repatriation Act. This Note then explores the various ways in which the efficacy of these protections is limited. Finally, this Note recommends amending federal statutes to eliminate gaps in protection, empower the Department of the Interior to prosecute violations, and increase training among those most likely to encounter illicitly trafficked cultural material—namely customs officials and law enforcement. PubDate: Wed, 27 Apr 2022 06:56:06 PDT
Authors:Heather Odell Abstract: Although amendments to the Trafficking Victims Protection Act (TVPA) have opened the door to greater corporate liability, government liability under the TVPA remains murky. A critical barrier that plaintiffs suing government entities confront is the broad protection from suit that states enjoy under the Eleventh Amendment. One of the few exceptions to this protection is congressional abrogation of state sovereign immunity. In 1996, the Supreme Court held in Seminole Tribe of Florida v. Florida that to abrogate state sovereign immunity, Congress must do so pursuant to a valid source of power. It further held that this valid source includes Congress’s Fourteenth Amendment enforcement powers, but not its Article I powers. Although some courts interpreting the TVPA have noted its roots in the Commerce Clause of the Constitution (an Article I power), others reason that Congress enacted it pursuant to its Thirteenth Amendment enforcement power. This Note argues that Congress enacted the TVPA based on the Thirteenth Amendment, and therefore, suits against state defendants present a novel legal issue: can Congress abrogate state sovereign immunity pursuant to its power to enforce the Thirteenth Amendment' This Note answers in the affirmative. It contends that plaintiffs suing states under the TVPA have an opportunity to simultaneously seek remedy for violations of their rights, while also chipping away at restrictive abrogation precedent that continues to protect states at a high cost to individuals. PubDate: Wed, 27 Apr 2022 06:56:05 PDT
Authors:Zachary S. Halpern Abstract: In 2008, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right of “law-abiding, responsible citizens” to keep and bear arms to defend their home. The Court’s decision in Heller, however, left novel questions about the scope of the right unanswered, including at what age it vests. Federal law prohibits federally-licensed dealers from selling handguns to persons under twenty-one, but it permits persons over eighteen to possess and use handguns and acquire them through private sales. In 2018, in response to the mass shooting at Marjory Stoneman Douglas High School, Florida raised its minimum purchase age for all firearms to twenty-one. The National Rifle Association immediately challenged the law in federal court, claiming that it violated the Second Amendment rights of young adults aged eighteen to twenty. In 2021, in National Rifle Ass’n v. Swearingen, the U.S. District Court for the Northern District of Florida held that the law is consistent with the Second Amendment. This Note discusses how federal and state statutory regimes interact with the Court’s Second Amendment jurisprudence to govern young adults’ access to firearms. It examines arguments concerning the constitutionality of Florida’s minimum purchase-age provision and contends that the measure is valid because it is analogous to the “presumptively lawful” restrictions identified in Heller and because it survives intermediate scrutiny. PubDate: Wed, 27 Apr 2022 06:56:04 PDT
Authors:Evelyn L.A. Jackson Abstract: On January 12, 2021, in United States v. Safehouse, the U.S. Court of Appeals for the Third Circuit held that supervised injection facilities—sites where medical professionals monitor injection drug use—violate the Crack House Statute. The legality of supervised injection facilities was a matter of first impression at the circuit level. Research shows that supervised injection facilities reduce overdose deaths and the spread of infection and are important harm reduction measures for combatting the opioid epidemic. The Third Circuit held that these programs violate the Crack House Statute, 21 U.S.C. § 856(a)(2), because they act with the statutorily proscribed purpose of drug use. Within its opinion, the Third Circuit noted that the word “purpose” in the provision pertains to the drug users. The Third Circuit’s determination that the statute does not require the property managers to hold an illicit purpose conflicted with the U.S. District Court for the Eastern District of Pennsylvania’s opinion, which found supervised injection facilities to be legal. This Note maintains that the Third Circuit erred in concluding that “purpose” refers to the drug users and argues that it instead modifies the site operator. This Note further argues that American drug law is inapposite to treating and ending the opioid epidemic. Thus, this Note concludes by calling on Congress to incorporate addiction research findings into future drug policy. PubDate: Wed, 27 Apr 2022 06:56:04 PDT
Authors:Anita Sinha Abstract: The governance of global migration increasingly relies on what critical migration scholarship refers to as externalized control. Externalization encompasses limiting human mobility through the imposition of migration control measures by transit states, as well as by states that are geographically proximate to destination states. Destination states are at a minimum complicit in the creation and operation of these externalized migration control systems. To capture this phenomenon, this Article offers a reconceptualization of externalization as transnational migration deterrence. The objective of this nomenclature is to provide a framework that highlights the role of destination states, to build a lexicon of accountability for extraterritorial human rights violations against migrants. Transnational migration deterrence systems often arise through ad hoc policies and practices, typically as a response to a migration “crisis,” and continue there-after as long-lasting mechanisms of regional migration control. Destination states typically provide assistance for less-resourced states to carry out migration control on their behalf through financial and logistical support, while also levying threats if they fail to deter migration. This Article begins with transnational migration deterrence in the Americas, describing first the historical context of the U.S.-Caribbean migrant deterrence system and then present-day migration control practices between the United States, Mexico, and Central America. It then turns to the transnational migration deterrence systems in Europe and Australia, chronicling arrangements of interdiction at sea and offshore detention in both regions. The Article concludes by exploring a framework of accountability that recognizes the relational nature of how externalized migration controls are operationalized, emphasizing the need for systems of accountability with respect to destination countries’ role in migration deterrence practices. PubDate: Wed, 27 Apr 2022 06:56:03 PDT
Authors:Rebecca J. Hamilton Abstract: Online intermediaries are omnipresent. Each day across the globe, the corporations running these platforms execute policies and practices that serve their profit model, typically by sustaining user engagement. Sometimes, these seemingly banal business activities enable principal perpetrators to commit crimes. Online intermediaries, however, are almost never held to account for their complicity in the resulting harms. This Article introduces the concept of platform-enabled crimes into the legal literature to highlight the ways in which the ordinary business activities of online intermediaries enable the commission of crime. It then focuses on a subset of platform-enabled crimes—those in which a social media company has facilitated international crimes—to understand the accountability gap associated with them. Further, this Article begins the work of addressing the accountability deficit for platform-enabled crimes by adopting a survivor-centered methodology and using the complicity of Facebook (now Meta) in the Rohingya genocide in Myanmar as a case study. It advances a menu of options that survivors, prosecutors, and legislators could pursue in parallel, including amending domestic legislation, strengthening transnational cooperation between international and domestic prosecutors for criminal and civil corporate liability cases, and regulatory action. The Article concludes by acknowledging that no single body of law is equipped to respond to the advent of platform-enabled crimes. By pursuing a plurality of proactive options, however, we can make a vast improvement on the status quo. PubDate: Wed, 27 Apr 2022 06:56:03 PDT
Authors:E. Lea Johnston et al. Abstract: This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED defense shows that, of the few states that have adopted it, most have rejected its diminished responsibility potential. Instead, most retain key features of heat of passion such as requiring an external provoking event, rendering the defense inapplicable to many delusion-driven crimes. A better solution would be to create a generic partial excuse for diminished rationality from mental disability. Over the decades, several prominent scholars have offered proposals for generic partial excuses for partial responsibility, but, as of yet, none has inspired legislative action. This Article’s proposal differs from prior proposals in four key respects. First, it limits its purview to rationality impairments from mental disabilities, a traditionally recognized form of diminished blameworthiness. Second, to be workable and attractive to states, this proposal recommends that states draw definitions of partial responsibility from existing statutory frameworks, namely existing insanity or Guilty But Mentally Ill (GBMI) standards. Such an understanding of partial responsibility should carry greater local legitimacy, and the popularity of GBMI verdicts with legislatures and juries may mean that extending those statutes into the realm of partial responsibility would be more palatable to state legislatures than wholly new language. Third, in light of the realities of mental disorder and its lived experience, our proposal does not advocate for a lesser degree of mitigation for defendants who contributed to their irrationality through failure to comply with medical directives. Fourth, our proposal draws from GBMI statutes and partial responsibility standards outside the United States to suggest sentencing, treatment, and post-sentence options to accompany a partial responsibility verdict and respond to any possible threat to public safety. This Article examines the first two distinctive components of the partial excuse; the third and fourth aspects of the proposal will be developed in a future work. PubDate: Wed, 27 Apr 2022 06:56:02 PDT
Authors:Tristen Rodgers Abstract: The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. Constitution. The Eleventh Circuit agreed with the Seventh Circuit and declined to permit a constitutional claims exclusion. In contrast, the First, Eighth, Ninth, and D.C. Circuits have each held that the discretionary function exception does not shield the United States from liability where the conduct at issue allegedly violates the Constitution. This Comment argues that the minority approach is correct because sovereign immunity doctrine indicates that courts should read any exception narrowly in favor of the federal government. PubDate: Thu, 14 Apr 2022 08:20:38 PDT
Authors:Matthew Baker Abstract: On March 9, 2021, in United States v. Lancaster, the United States Court of Appeals for the Fourth Circuit held that a district court ruling on a First Step Act motion must consider intervening factual and legal developments when deciding whether to resentence an offender under the Act. In doing so, the Fourth Circuit exacerbated a circuit split regarding the proper scope of the First Step Act. Four circuits, led by the United States Court of Appeals for the Fifth Circuit, have taken the opposite position and do not allow their district courts to consider intervening circumstances at all. The United States Courts of Appeals for the First, Second, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits, on the other hand, allow their district courts to consider intervening circumstances but do not require them to do so. Within the latter group, the First Circuit created a two-step framework for ruling on a First Step Act motion where a district court may not consider intervening circumstances when deciding whether to resentence but may do so when actually resentencing. This Comment argues that the Fourth Circuit incorrectly expanded the First Step Act’s scope of relief in United States v. Lancaster because it did not properly balance the Act’s statutory text with the Act’s discretionary grant. Additionally, this Comment argues that the Supreme Court should adopt the First Circuit’s two-step framework because that approach best realizes Congress’s intent within the Act’s textual limitations. PubDate: Wed, 30 Mar 2022 12:07:20 PDT
Authors:Fergal Gaynor Abstract: This essay was delivered as the 2021 Holocaust and Human Rights Project Owen Kupferschmid Memorial Lecture. The Owen M. Kupferschmid Holocaust/Human Rights Project is named after its founder, a 1986 Boston College Law School graduate. Launched in 1984, the project’s goal was to ensure that the precedential value of Holocaust-related law is fully realized and applied to state-sponsored human rights violations today. PubDate: Wed, 30 Mar 2022 09:21:56 PDT
Authors:Taylor Comerford Abstract: Over the last year, Pornhub and its parent company, MindGeek, ignited public outcry against the prevalence of content users posted to their sites featuring sexual violence, nonconsensual pornography, and sex trafficking. Activists, journalists, and legislators allege that Pornhub and similar pornography sites are apathetic toward the victims in these videos and photos while profiting from the ad revenue such content brings to their sites. In December 2021, Senator Josh Hawley proposed the Survivors of Human Trafficking Fight Back Act, proposing to add criminal penalties and a federal cause of action against websites that either post or refuse to remove criminal pornography from their sites. This Note examines the arguments for and against legislation penalizing pornography websites for posting or hosting content of featuring sexual violence through a feminist lens. This style of legislation, which nobly aims to protect survivors of sexual violence, will likely appear again in Congress. This Note argues that Congress should not pass these bills because they subject transactional sex workers and pornography performers to economic and physical harm, making it an ineffective and misguided method to address the core harms of digital sexual exploitation. PubDate: Wed, 30 Mar 2022 09:21:50 PDT
Open Access journal
[7 journals]
