Online Features


Textualism and the Equity of the Copyright Act: Reflections Inspired by American Broadcasting Companies, Inc. v. Aereo, Inc.

Andrew Tutt

On April 22, 2014 the Supreme Court will hear argument in American Broadcasting Companies, Inc. v. Aereo, Inc., a case involving such technological boondogglery, such Rube Goldbergian skullduggery, such naked and unapologetic circumvention of the perceived purposes and aims of the Copyright Act and its enactors, that it will strike textualism at its very core. In doing so, however, Aereo offers an occasion for deeper reflection on how we should understand the Copyright Act. Is there space for equity in the Copyright Act? The answer is an emphatic yes. But that equity is not to be found in judicially fashioned equities, spun from abstract incantations of the Act’s purposes or values. The answer is in its text.


Summary of Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement

Ingrid V. Eagly

Professor Eagly’s October 2013 article, “Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement,” is now online!

Please also enjoy this summary that she graciously prepared exclusively for the N.Y.U. Law Review website.

“Immigration kind of hogties you.”

—Assistant district attorney, Houston, Texas

“Very little for most people is scarier than the thought of losing a green card.”

—Deputy county public defender, Los Angeles, California

“People will voluntarily deport and we keep track of that. We move them to the administrative caseload to be sure they don’t come back.”

—Adult probation officer, Phoenix, Arizona

The deportation of “criminal aliens” is now the driving force in American immigration enforcement. In recent years, the Congress, the Department of Justice, the Department of Homeland Security, and the White House have all placed criminals front and center in establishing immigration enforcement priorities. By fostering immigration screening at local jails and courthouses, federal authorities have filled the deportation pipeline with migrants arrested by local police and prosecuted in county courtrooms. Criminals and others identified during criminal arrests, such as “repeat immigration violators” and “fugitives from warrants,” now constitute a full ninety percent of all persons removed from the country. In effect, federal immigration enforcement has become a criminal removal system.

The growing centrality of criminality to immigration enforcement is one of the most significant historical shifts in the federal immigration system. Yet, the influence of this transformation on the everyday practice of criminal law remains underexplored. The nascent scholarship in this area has concentrated on the treatment of criminals within the immigration system, rather than on noncitizens within the criminal system. Thus, although there is a body of research about the effects of criminal convictions on immigration adjudication, scholars have largely ignored the effects of immigration enforcement on bread-and-butter criminal charges brought in local criminal courts.

This lack of attention to the role that immigration plays in criminal adjudication is reinforced by two common misperceptions: The first pertains to the immigration system and the second to the criminal system. The first misperception is that immigration enforcement is restricted exclusively to the federal government. According to this description of the federal immigration system, local criminal justice agencies have no formal role in immigration enforcement. The second misperception is that immigration status and the desire to inform immigration outcomes are not factors in the adjudication of criminal cases. By this account, how crimes are charged or sanctions imposed at the local level, although fraught with race and class disparities, does not single out noncitizens for different treatment within the criminal system.

As this Article demonstrates, however, neither of these descriptions reflects the reality of criminal practice. Rather than restricted to the federal domain, immigration enforcement is now deeply intertwined with the local enforcement of criminal law. Indeed, the federal government has formally enlisted state and local authorities to assist with enforcement through, among other initiatives, cooperative agreements with local law enforcement. The idea that immigration is not part of the local criminal process is also losing credibility. Far from remaining blind to the immigration status of defendants, some states and localities direct law enforcement to inquire about status while policing neighborhoods, whereas other states and localities  explicitly prohibit the practice. Judges presiding over criminal cases, prosecutors, parole and probation officers, jail personnel, and court clerks are also increasingly subject to specific rules and policies regarding whether and how to think about immigration status in processing cases.

Together, these two parallel developments—federal solicitation of local criminal system involvement in immigration removal and criminal system consideration of alienage in the processing of state crimes—represent a sea change in criminal justice. Appreciating how local criminal justice is structured in this era of immigration policing therefore requires examining how system participants actually go about their day-to-day work. How are the programs, priorities, and procedures of the new criminal removal system integrated into the institutional structure of local criminal justice agencies? How do immigration-oriented concerns (such as deportation and migration control) interact at the local level with criminal justice-oriented concerns (such as criminal punishment and crime control)?

In examining the criminal-immigration enforcement nexus, this Article explores the criminal justice systems in three large urban centers: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona. I chose to study these three counties because each ranks among the top in the nation on three separate indices of criminal alien enforcement: (1) number of arrests of noncitizens by local police and sheriffs; (2) size of criminal alien population housed in local jails; and (3) volume of fingerprint matches found through the federal government’s new jail-based immigration screening program known as Secure Communities. This steady flow of noncitizens is perhaps not surprising given that these southwestern urban counties are among the most populous in the nation and manage massive criminal caseloads. Each county is also located close to the Mexican border and has a significant noncitizen population. The geography and demographics of these three jurisdictions thus afford them significant experience with the criminal processing of noncitizens.

To document local practices, I rely on eighty-four interviews I conducted with stakeholders in the three counties—prosecutors, public defenders, private attorneys, judges, pretrial services officers, probation officers, and jail personnel. I also draw on other relevant data, including local laws and procedures, criminal court documents and forms, criminal and immigration enforcement statistics, and prosecution policies and training materials. Many of these materials were obtained through the Freedom of Information Act and state public records acts.

My research on these three counties reveals two important findings. The first finding is that criminal law’s integration with immigration enforcement has a far more powerful impact on local criminal process than previously understood. Across all three counties, criminal law officials are keenly aware of both the immigration status of defendants and the practical effects of the federal government’s reliance on convictions in making immigration enforcement decisions. Federal immigration agents are a continuous presence in the local law enforcement system: They are often physically present in local jails, impede release on criminal bail, train prosecutors on how to secure plea agreements that guarantee removal, and sometimes deport noncitizen defendants prior to their criminal trials. Deportation also poses unique challenges for plea bargaining and sentencing because noncitizens are often deported before they are able to complete probation, community service, or other similar requirements imposed by the criminal court.

My second finding is that, despite these consistently deep connections between federal and local officials across all three counties, each county has navigated this criminal-immigration integration in a strikingly different way. At the county level, I find that criminal justice for noncitizens is influenced by two somewhat overlapping sets of discretionary decisions. One set includes local practices that weigh alienage status at different points in the criminal process (such as enhancing a criminal sentence if a defendant is undocumented). The other set of discretionary decisions includes criminal policies and procedures adopted in response to federal immigration enforcement efforts (such as reporting arrestees to immigration authorities or fashioning a plea agreement to avoid deportation). Significantly, within each county, I find that the various criminal system participants (including prosecutors, defense attorneys, judges, and probation officers) have developed a shared understanding of the local criminal system’s role in both sets of discretionary decisions.

Drawing on my research, I provide a framework for conceptualizing the varied approaches of these three influential counties. As I describe, Los Angeles has adopted an alienage neutral model that seeks to shield the criminal process from consideration of immigration status and the disproportionate effects of immigration enforcement on criminal bargaining and sentencing outcomes. Harris County has implemented an illegal alien punishment model in which judges and prosecutors allocate harsher criminal system punishments for those who commit crimes while in violation of this country’s immigration laws. Finally, Maricopa County has created an immigration enforcement model in which local law enforcement, prosecutors, judges, and probation officers attempt to discern immigration status at every stage in the criminal process and bring all potentially deportable noncitizens to the attention of federal immigration officials.

In each jurisdiction, federal immigration enforcement and local criminal practice form a coherent, interlocking system that advances distinct conceptions of noncitizen criminal justice. Although, as I explain, there can be some divergence between what local actors say and what they do in a particular case, at the level of criminal justice policy and articulated practice, each county has developed a unique understanding of how immigration status relates to criminal punishment and the appropriate role of local law enforcement in attaining immigration enforcement goals. As a result, each of the three models affects different categories of noncitizens at different points in the criminal process.

These findings have significant implications for the design of both local criminal justice systems and federal immigration enforcement. For the criminal justice system, the three counties teach us that the treatment of noncitizens incorporates different local understandings of how to achieve equality in criminal sanctioning across alienage lines and eliminate the perceived impact of immigration on crime control. Disentangling these two issues makes it possible to entertain with more clarity what policies and practices are at stake in crafting a local approach to noncitizen justice. For the federal immigration system, the distinct county models challenge the assumption of national uniformity that drives much of federal immigration policy. If uniformity is indeed the desired federal approach, this research demonstrates that more careful thought must be applied to both the exercise of discretion in making deportation decisions and the federal supervision of local criminal justice practices. In short, in this era of unprecedented immigration enforcement against suspected criminals, this Article’s on-the-ground inquiry recalibrates our understanding of both criminal justice and immigration federalism.

Diminishing Retaliation Liability

Alex B. Long, Sandra F. Sperino

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

In Hernandez v. Yellow Transportation, Inc., John Ketterer, a White dockworker at Yellow Transportation’s Dallas terminal, alleged that the Dallas terminal was, to put it mildly, an unpleasant place to work. Unhappy about what he viewed as racial discrimination directed at his coworkers, Ketterer picketed the company. As a result, Ketterer claimed, other employees subjected him to retaliatory harassment. This retaliation included “name-calling, physical intimidation, false accusations, vandalization of his belongings, verbal threats, and observing violence and illegal behavior.”

Comment on Market Conditions and Contract Design: Variations in Debt Contracting

Alan Schwartz

In Response to: Market Conditions and Contract Design: Variations in Debt Contracting

This Comment attempts to explain two stylized facts: As the market interest rate rises, lenders demand either (a) more collateral, or (b) tighter covenants. In their Article, Conditions and Contract Design: Variations in Debt Covenants and Collateral, Choi and Triantis (“C&T”) use two models in their explanation of these facts: an adverse selection model and a moral hazard model. The adverse selection model formally analyzes only collateral contracts, but the authors claim that both the collateral contract and the covenant contract mitigate adverse selection. The moral hazard model also considers only collateral contracts; the claim here is that these best mitigate moral hazard.

The Article claims to derive three principal results:

(A) The likelihood that parties write collateral contracts is increasing in the market interest rate (both models). When the problem is adverse selection, this result applies to covenants as well.

(B) Good (i.e., less risky) types are more likely to offer collateral than bad types (both models);

(C) The difference in the contracts of good and bad types widens as the market interest rate increases (both models).

This Comment argues that under symmetric information, results (A) and (C) continue to hold but result (B) reverses: Bad types offer more collateral than good types. Symmetric information is the more plausible assumption in the Article’s adverse selection setup. I make three other points: (i) C&T’s moral hazard model assumes that borrowers are ex ante identical: Every borrower is equally likely to pursue a later project that disadvantages the initial lender. This setup cannot explain why some partie —lenders and borrowers—use covenants while other, apparently similar parties, use security; (ii) Letting borrowers differ ex ante may explain when parties prefer one or the other risk reduction device. In this framework, the better argument continues to be that bad types offer more collateral than good types; (iii) Turning to empirics, some data rejects C&T’s result (B): Bad types appear in fact to offer more collateral than good types. Because this data is not current, it cannot settle the issue. On the other hand, and to summarize, the data and the analysis raise the question whether C&T are using the right models for the problem.

Copying and Context: Tying as a Solution to the Lack of Intellectual Property Protection of Contract Terms

Lisa Bernstein

In Response to: Contracts as Technology

In his Article Contracts as Technology Kevin Davis makes an analogy between technological innovation and contractual innovation and suggests that contractual innovation, like technological innovation, can both add value to exchange and promote trade. Davis presents a theory of the uses and sources of contractual innovation that has at its core the idea that “[t]he principal determinant of the value of adopting a contract is the value of the changes in behavior it induces.” The Article then draws on this theory and the analogy to technological innovation to explore the incentives of law firms, businesspeople, trade associations, and a variety of nonprofit institutions to engage in contractual innovation, even though there is no equivalent of copyright, trademark, or patent protection for contractual language. It concludes that given the lack of intellectual property protection for contractual language, potential contractual innovators of all types are likely to make socially sub-optimal investments in contractual innovation.

This Comment adds to Davis’s analysis by describing the ways that standard-form contracts and trading rules are produced and used in trade associations. It suggests that many trade associations tie these contracts to other products and services they offer in ways that create contractual value for their members that is not fully available to those who might simply decide to adopt, or more aptly, copy the language of their contractual forms. As a result, association members endorse contract and trade rules revision efforts funded by membership dues even though these contracts can be copied and these rules incorporated by reference into transactions between nonmembers who in effect free ride on the associations’ costly drafting efforts. More broadly, exploring contractual innovation in the trade association context suggests that once it is recognized that the value of a contract depends as much on the institutional and interpersonal context in which it is adopted, governed, performed, and enforced as it does on the specific words used, the lack of intellectual property protection for contractual language might be far less of a barrier to contractual innovation generally than Davis suggests.

NAMUDNO’s Non-Existent Principle of State Equality

Zachary S. Price

The fifty states are unequal in many respects—population (and thus representation in the House of Representatives), wealth, resources, climate, economic foundations, and industrial and technological development, to name a few. Federal legislation, therefore, often affects states unequally, and at times even singles out particular states for special treatment. Is such legislation suspect? In dicta in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), the Supreme Court cryptically suggested that it might be. This term, in Shelby County v. Holder, the Court is poised to revisit the issue presented in NAMUDNO: whether section 5 of the Voting Rights Act (VRA), which imposes special requirements on certain states and jurisdictions with histories of discrimination, is constitutional. In the process, the Court could choose to give the NAMUDNO dicta some bite.

The Court should not do so. The suggestion that federal legislation must treat states equally is a chimera, without support in constitutional text, history, or precedent. It is particularly unfounded with respect to legislation, like section 5 of the VRA, that is based on Congress’s authority under the Fourteenth and Fifteenth Amendments to eradicate discriminatory denials of the right to vote. A constitutional requirement that legislation cannot treat states differently would call into question many typical legislative acts. The idea should be put to rest before it causes mischief.

The Private Life of Public Rights: State Constitutions and the Common Law

Helen Hershkoff

In this lecture, I make the positive point that some state courts do indeed indirectly enforce state constitutional norms through the common law when resolving disputes that involve only private actors, and that this practice is analytically distinct from mere policymaking. The practice allows public law to influence the content of private law in ways that may not immediately be obvious to see. I illustrate the practice, and I point to some of the common law pathways that state courts use in this process. I then make the normative argument, and try to convince you, that more state courts should embrace this practice. I close by suggesting some of the implications this practice holds for social improvement. Thinking back to my earlier career as a public interest lawyer, I was motivated by the belief that law, and especially constitutional law, can improve everyday life. I still hold that view, but I have come to see that the mechanisms of change also must include the slow, molecular motions of the common law.


Debating the Declining Influence of the United States Constitution: A Response to Professors Choudhry, Jackson, and Melkinsburg

David S. Law, Mila Versteeg

In Response to:
Comment on Law and Versteeg
Comments on Law and Versteeg’s The Declining Influence of the United States Constitution
Method in Comparative Constitutional Law: A Comment on Law and Versteeg

This brief essay responds to the commentaries by Professor Choudhry, Professor Jackson, and Professors Elkins, Ginsburg, and Melton (“Melkinsburg”) on our article, The Declining Influence of the United States Constitution. We agree with much of the substance of their thoughtful commentaries, especially their calls for methodological pluralism and broader-ranging empirical research. Some of our differences, meanwhile, are matters of emphasis and framing. For example, their point that the U.S. Constitution remains influential upon constitution writing at a high level of abstraction is one that we make ourselves. We also emphasize, however, that highly abstract similarities are no indication that constitutional drafters in other countries find the U.S. Constitution a useful or attractive model to emulate as a practical matter.

Our most significant disagreement lies with two of Melkinsburg’s arguments. First, they contend that we have misinterpreted our empirical findings of declining similarity to the U.S. Constitution as evidence of declining influence. We reject their suggestion, however, that the U.S. Constitution can only be said to have lost influence to the extent that its “essential elements” have been repudiated. No definition of a concept such as influence can be proclaimed exclusively correct by fiat. Moreover, their definition comports neither with intuition nor with our goal of identifying where constitutional drafters today look for inspiration.

Second, they argue that the trends we identify as belonging to the late twentieth century are merely continuations of trends that actually began in the mid-nineteenth century. In our view, their analysis gives insufficient consideration to two dynamics that render post–World War II constitutional trends qualitatively distinct from nineteenth-century trends. Those two dynamics are constitutional proliferation, meaning an explosion in the sheer number of constitutions, and constitutional standardization, or the increasing use of increasingly standard constitutional models that bear limited resemblance to the U.S. Constitution. Constitutional drafting today reflects the emergence of pockets of consensus in a densely populated constitutional environment that simply did not exist in the mid-nineteenth century or even the early twentieth century. Any conclusions that Melkinsburg draw from ostensibly global nineteenth-century data are likely to be disproportionately influenced by the atypical experience of Latin American constitutionalism. Our focus, by contrast, is upon a late twentieth-century process of constitutional standardization that ultimately bypassed the U.S. Constitution in favor of a more genuinely global synthesis.

Comment on Law and Versteeg

Vicki C. Jackson

In Response to: The Declining Influence of the United States Constitution

David Law and Mila Versteeg have used their considerable legal and empirical skills to identify what they provocatively describe as the “declining influence of the U.S. Constitution,” or of what they sometimes call “American constitutionalism.” This claim has been headline-grabbing in important part because of the larger sociolegal context, in which the question of American hegemony in the world of global politics and economics is deeply unsettled. Declining influence in the design of constitutions thus resonates with a larger set of anxieties about the role of the United States in the world.

An alternative to seeing greater variations among constitutional instruments as a sign of decline in the influence of the U.S. Constitution within a framework of power hierarchy and competition, is instead to see the increased variations in a framework of evolution and diffusion, and as a sign of the success—not the failure—of the U.S. constitutionalist project. To read “decline” into greater variation may, then, be simply a reflection of anxieties in other spheres, rather than a troublesome development in its own right. In the rest of this comment, I offer brief thoughts on the influence of the U.S. Constitution and on the challenges of accurately and completely tracking such influence. I close with some questions about whether and why influence matters.