NewYorkUniversity
LawReview

Notes

2022

Delegated to the State: Immigration Federalism and Post-Conviction Sentencing Adjustments in Matter of Thomas & Thompson

David G. Blitzer

In Matter of Thomas & Thompson, former Attorney General William Barr argued that states have no role to play in immigration matters and thus, state adjustments to a criminal sentence post-conviction will not be given effect for adjudicating deportability based on criminal grounds under section 101(a)(48)(B) of the Immigration and Nationality Act without an underlying substantive or procedural flaw in the original criminal case. The former Attorney General incorrectly assumed that states cannot be involved in immigration decisionmaking. Not only is it constitutionally permissible for the federal government to delegate certain immigration powers to the states, but the immigration code does so in many places. Careful examination of the text and legislative history of section 101(a)(48)(B) reveals that whatever sentence the state deems operative counts for immigration purposes—even if state law considers the operative sentence a later adjustment—implying that Matter of Thomas & Thompson put forth an erroneous interpretation.

Privatizing the Provision of Water: The Human Right to Water in Investment-Treaty Arbitration

Ashley Otilia Nemeth

Despite its critical importance, the fulfillment of the human right to water is far from the reality for many today. One in three people do not have access to safe drinking water and more than half of the world’s population does not have access to safe sanitation. Achieving the international community’s commitment of universal access to safe water and sanitation by 2030 would cost states approximately$150 billion per year. Meeting those funding needs inevitably entails private, and often foreign, investment. When investments do not go as planned, foreign investors may turn to international arbitration for relief. While intended to protect investments, this legal regime has allowed investors to challenge regulatory measures that further human rights and to wield undue power over states. This Note analyzes investment-treaty disputes involving drinking water to understand how states have invoked, and tribunals have considered, the human right to water. The cases show an important evolution on the part of tribunals. Nevertheless, almost all of the tribunals fall short of integrating the human right to water in their analysis of substantive treaty claims. Interestingly, the cases also reveal that, despite invoking human rights defenses, states engage in actions that are difficult to justify as furthering the right to water. In turn, this Note argues that the “fair and equitable treatment” standard can and should include relevant human rights law as part of “investors’ legitimate expectations.” Such an integration creates opportunities for accountability on both sides of the ledger: Investors are expected to engage in human rights legal due diligence, and states are taken to task when they invoke human rights in a perfunctory fashion. The fair and equitable treatment standard presents an opportunity to expand fairness and equity in international arbitration not only for the disputing parties, but also for the people who stand to lose from their actions.

The Limits of Dual Sovereignty

Eleuthera Overton Sa

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Yet the dual sovereignty doctrine, a longstanding rule of judicial interpretation, reads the Double Jeopardy Clause as applying only to prosecutions by a single sovereign. Successive prosecutions by separate sovereigns, including the United States and foreign nations, do not implicate double jeopardy. The Double Jeopardy Clause protects the individual from government overreach, but the dual sovereignty doctrine flips the script: It protects the interests of the sovereign at the expense of the individual. After many decades of criticism, the Supreme Court reconsidered and then reaffirmed the doctrine in Gamble v. United States. The current blanket rule solves one problem—the fear that sovereign interests will be thwarted by other sovereigns—but creates another: an incentive for two sovereigns to join up to evade constitutional requirements. In the shadow of the dual sovereignty rule, lower courts have articulated an exception where one sovereign manipulates another or uses it as a “sham” or a “cover” for its own aims. Without further guidance from the Supreme Court, however, courts are reluctant to find the exception to apply.

This Note offers a new approach to inter-sovereign successive prosecutions that would reconcile these two doctrinal threads and provide greater protection to defendants at the mercy of multiple sovereigns: application of the strict scrutiny standard. Courts should embrace the complexity of inter-sovereign prosecutions, which can range from situations of obstruction, where successive prosecution may be necessary, to manipulation, where it should be prohibited. Genuine protection of the right against double jeopardy demands strict scrutiny.

A “Charter of Negative Liberties” No Longer: Equal Dignity and the Positive Right to Education

Arijeet Sensharma

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.


Merging Photography’s Copyright

Amanda Fischer Adian

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.

Doubling Down: Inconsistent Prosecutions, Capital Punishment, and Double Jeopardy

Vedan Anthony-North

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.

Nipping It in the Bud: Fixing the Principal-Agent Problem in Class Actions by Looking to Qui Tam Litigation

Nicholas Alejandro Bergara

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.

Getting “Arising out of” Right: Ford Motor Company and the Purpose of the “Arising out of” Prong in the Minimum Contacts Analysis

Jeremy Jacobson

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.

Farmland Deregulation and Third-Stage Land Reform in Taiwan

Jessica Li

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.

The Racial Injustice and Political Process Failure of Prosecutorial Malapportionment

Michael Milov-Cordoba

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.

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