Issue: 1

The Supreme Court’s narrowing requirement emerged from concerns in Furman v. Georgia (1972) that the death penalty was being implemented in a manner that was arbitrary, capricious, and discriminatory. For many states that continue to exercise the death penalty, the narrowing requirement is satisfied by statutory aggravating factors designed to limit the death-eligible class to the most heinous offenders.

This Note identifies a problem in the construction of statutory aggravating factors that has been severely overlooked and endures today: double counting. Double counting occurs when the statutory aggravating factors duplicate elements of the capital offense. In this context, a finding of guilt can mean an automatic finding of an aggravating factor, resulting in an automatic or mandatory death sentence. This Note contends that the persistence of double counting is due to a misinterpretation of Lowenfield v. Phelps (1988). This Note supports this contention through a comprehensive analysis of state supreme courts’ and lower federal courts’ approaches to upholding the practice of double counting. Finally, this Note provides a strategy to prevent the unconstitutional practice of double counting and to successfully enforce the narrowing requirement.

A picture is worth a thousand words… or likes, or dollars. But is it worth a child’s dignity? Social media’s youngest stars, or kidfluencers, grow up in the eyes of the public. As their parents engage in sharenting—posting one’s child on social media—the kidfluencers lose their privacy, their capacity to create their own reputation, and even their online safety. This Note examines how to provide redress to former kidfluencers whose privacy was traded for social media likes. Part I covers the basics of sharenting and reputation-based law. Part II then covers the problems in regulating sharenting, both in theory and with current proposals. Finally, Part III proposes a new reputational and privacy tort framework that would allow kidfluencers to regain some control over their image.

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and Education Assistance Act of 1975, that have facilitated greater Tribal control over programs and services for Tribal communities, including health systems. Tribally managed health systems can, and are, playing a crucial role in closing this health gap.

This Article also positions the status of Native communities in the United States within the global dialogue on the right to health, as Indigenous Peoples in settler colonial states are demonstrably experiencing similar disparate outcomes. This discussion includes background on the international legal framework for the right to the highest attainable standard of health, the rights of Indigenous Peoples, and the social determinants of health, some of which are arguably unique to Indigenous communities. The Article explores these concepts for the lessons that may be garnered for the benefit of Tribal health systems. It also argues that Tribes that are successfully operating healthcare systems have their own lessons to offer the global community in providing quality care and bringing American Indian and Alaska Native communities closer to actualizing the highest attainable standard of health.

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.

How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.

This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.

Constitutional text and history make the wrongness even clearer. The Framers wrote the Constitution precisely to quell the “violence of faction” that the States exhibited under the Articles of Confederation. They understood faction to produce “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.” So the Framers resolved to bind “the judges in every State” to treat the Constitution as the “supreme Law of the Land”; and the Framers gave federal judges—protected by life tenure and irreducible salaries—the “judicial Power” to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions. Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789–1914) and/or habeas corpus (1867–today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress’ or state courts’ reasonable-but-wrong constitutional judgments as “treason to the Constitution.”

New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect “small” businesses and “the citizenry” against politics and special interests. The test of their bona fides is whether they will take the same course in cases of individuals like William Packer and Joshua Frost, both convicted and sentenced to prolonged imprisonment through “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.”

After the Supreme Court’s decision in Richardson v. Ramirez, many believed federal protection against state felony disenfranchisement laws to be dead. However, recently, several litigators in Virginia have revived a set of old, Reconstruction-era statutes to argue that the federal judiciary not only can, but must, curb current felony disenfranchisement practices. Lost to history, this set of statutes, called the Readmission Acts, conditioned all but one of the former Confederate states’ readmissions on the prospect that those states limit future disenfranchisement to “now felonies at common law.”

This Note serves as a first-of-its-kind analysis of the Readmission Acts, sifting through 242 pages of legislative history to shine light on their meaning. First, it traces the history of felony disenfranchisement from Reconstruction until today. It then examines the Acts more specifically, pointing out the powers that Congress could have relied on to pass the Acts, conducting a statutory interpretation analysis to decipher their meaning, and outlining various remedies that courts can pursue for violations of the Acts. Finally, this Note will address some of the arguments against enforcing the Acts, responding to critiques related to the political questions doctrine, sovereign immunity, federalism more broadly, and the equal state sovereignty doctrine. When discussing the equal state sovereignty doctrine, this Note will uplift statements from the Reconstruction Congress that highlight the current Court’s misalignment with the goals of Reconstruction.

Reconstruction wholly changed the nature of the United States legal system. The Acts are a further reflection of that legacy. In addition to changing the landscape of felony disenfranchisement laws in the United States, these Acts also speak to the Reconstruction Congress’s view on federalism, one that the Supreme Court has seemingly abandoned in its current jurisprudence. This Note argues that the Readmission Acts could and should be leveraged to combat modern disenfranchisement.

The United States Supreme Court recently decided a case involving a man nearly tortured to death at the hands of the United States government. For years, the executive branch made pronouncements that it must keep information from litigants due to state secrets. The Court has always scrutinized these pronouncements. Until now. In the Zubaydah case, the Court dismissed a torture survivor’s quest for justice. But it did not stop there. The opinion followed years of cases dismissed based on the state secrets privilege and effectively announced that the courts will not review claims made by the executive in certain situations. Despite the compelling needs of the litigant, the Court instead walked in lockstep with the executive branch and dismissed the claim entirely. This action is akin to the invocation of the Crown Privilege as it existed in England from the 15th Century until 1968. This decision will undoubtedly cause executive branch overreach. Without the judicial check on the unilateral actions of the Central Intelligence Agency and other secretive departments within our government, abuse will continue. Americans require a transparent view of their government for effective democracy. The State Secrets Protection Act previously introduced in Congress is a critical fix to remedy the Court’s acquiescence to executive branch decision making.

Nationwide, the number of individuals that lack access to housing is increasing. At the same time, local governments have escalated efforts to criminalize the unsheltered. Given this context, access to temporary shelters has become a critical component of addressing issues surrounding houselessness. However, not all groups have equal access to temporary shelters. Disabled people face significant barriers to accessing shelter systems, frequently forcing them to sleep outdoors. This Note seeks to highlight the discrimination faced by people with disabilities in temporary shelters, explain why our current legal regime has failed to protect against the types of discriminatory behaviors shelters frequently engage in, and explore potential solutions to this problem. Specifically, this Note proposes utilizing the Affirmatively Furthering Fair Housing mandate to stop discrimination by shelters. Establishing access to temporary shelters is neither a solution to houselessness nor a solution to housing discrimination against disabled people in general. Still, ensuring that all individuals can reside in shelters if they so choose is a critical intermediary step, particularly in light of the increasingly inhumane consequences that individuals may face by remaining unsheltered, including criminalization, health risks, and in some places, forcible commitment.

The United States Congress enacted Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 to protect asylum seekers fleeing China’s One-Child Policy (OCP). Such Chinese asylum seekers have primarily utilized the statute to secure asylum grants on the grounds of being subjected to a forced sterilization or forced abortion. However, while the world is familiar with China’s now defunct OCP, researchers have shed light on a lesser-known practice—the global prevalence of involuntary sterilization by medical providers, both forced and coerced, targeting marginalized women. The published case law’s focus on involuntary sterilization within the context of the OCP raises questions of whether the statute provides equal protection to asylum seekers who were subjected to sterilization outside of China and without a similar government-stipulated policy. This Note explores three groups of marginalized women who are often targeted for involuntary sterilization, as well as the circumstances under which they are forcibly and coercively sterilized. It analyzes how the Board of Immigration Appeals (BIA) and some circuit courts have defined what constitutes a “forced” sterilization or abortion within the context of the OCP. It also presents an analytical framework for why Section 601(a) extends to asylum seekers outside of China. Based on this framework, this Note further argues that attorneys and physicians should widely screen their female asylum clients for involuntary sterilization as a means of potentially securing an additional path, with a lower evidentiary burden, towards an asylum grant.

Legal challenges against the constitutionality of state anti-Boycott, Divestment, Sanctions (BDS) laws are slowly making their way through United States circuit courts, and, so far, these challenges have rested largely on First Amendment grounds. This Note explores the viability of an alternative approach: challenging the constitutionality of state anti-BDS laws under the doctrine of foreign affairs preemption. Ultimately, this Note concludes that state anti-BDS laws pose a sufficient intrusion into foreign affairs so as to be rendered unconstitutional by the doctrine of foreign affairs preemption. Nonetheless, before pursuing this approach in court, litigators and advocates should consider how the precedent might implicate the goals of human rights activists in the long run, particularly regarding the abilities of state governments themselves to mobilize against foreign countries committing human rights violations.

In 2023, the Biden Administration announced its plan to enhance the use of summary removals, which are administered and completed by low-level immigration officers without further process unless there is an articulated fear of return by the noncitizen. This fear articulation triggers a fear interview with an asylum officer who determines whether the noncitizen has a credible or reasonable fear of return—a process that the Biden Administration further shortened while effectively imposing a higher fear standard through a recent finalized rule. A negative fear determination results in immediate removal unless the noncitizen requests review by an immigration judge. In 2019, only 15,476 migrants subject to the fear screening process requested review of their negative fear determinations. In most of these reviews, 74.3 percent, the immigration judge affirmed the asylum officer’s negative fear determination, resulting in the humanitarian relief seeker’s deportation as the decision in these reviews is not subject to appeal or further review. This Article seeks to highlight how the lack of clear process in an immigration judge’s review of an asylum officer’s negative fear determination under 8 C.F.R. § 208.30(g) and 8 C.F.R. § 1208.31(g) leads to an unchecked judicial discretion that can serve as a barrier to justice and humanitarian relief for those fleeing severe harms in their countries of origin or removal. This Article presents the first sustained examination and critique of the immigration judge review process that grounds decisions to expeditiously return migrants. After a review of the literature on this corner of our immigration system, I present some rare insights into this immigration judge review process based on descriptive data collected from an accompanying national survey of immigration advocates with direct experience in these proceedings. I then argue that that the fear screening process in its current form is in violation of the United States’ international and domestic obligations and should be dismantled. The lack of clearly defined procedures and meaningful standards, and the vast discretion afforded to immigration judges in these proceedings result in egregious failures of both process and substance. In the current process, expediency is championed over accuracy—belying the pretense of humanitarianism and charity that cloaks the entirety of our system of humanitarian protection. Lastly, I present some suggestions for reform to minimize the risk of erroneous fear determinations and ensure a fairer process for all migrants—not just those who win the adjudication lottery by being assigned to an immigration judge who approaches review of asylum an officer’s negative fear determination as the migrant’s legitimate opportunity to be heard and questioned.

Many scholars have studied the racialization of Asian Americans and found that perpetual foreignness stands at the core of their ascriptive identity. This identity was formed in the 19th century and is also closely related to the dominant society’s racial understanding of ‘the Chinese’—which refers, for the purposes of this Article, to people of actual or perceived Chinese descent in the United States. This Article investigates this racialization process, with a contemporary lens: What does perpetual foreignness mean to the Chinese in the 21st century? This Article argues that, for the Chinese, their foreignness in today’s United States means more than just otherness, inferiority, and inassimilability; instead, the Chinese foreignness has acquired an additional specific meaning: the unquestionable linkage to China, the United States’ most significant geopolitical challenger. This Article uses the U.S. Department of Justice’s failed China Initiative to investigate this new ascriptive identity of the Chinese and argues that the geopolitical tension between China and the United States plays a vital role in this change. As the United States’ most significant challenger in geopolitics, China has taken a central role in the racial understanding of the Chinese in the 21st century. To many non-Chinese Americans, the Chinese are more than just foreigners who are culturally associated with a far away, inferior oriental country as they were perceived in the 19th and 20th centuries. Today, they are a suspect race who possess an unbreakable linkage to China, the dangerous perpetrator in geopolitics. In short, today, the Chinese are not just foreign; they are foreign perpetrators. This new ascriptive identity of the Chinese resonates with the differential racialization tenet of the Critical Race Theory that the dominant society racializes different minority groups at different times in response to shifting needs and interests. How the United States views China has a direct impact on how Americans views the Chinese. Since China will likely remain the United States’ geopolitical challenger, this Article predicts that the foreign perpetrator identity will be attached to the Chinese community in the foreseeable future.