Time to Go Auer Separate Ways: Why the Bia Should not Say What the Law is by Tatum Rosenfeld

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)

Keywords: Board of Immigration Appeals (“BIA”), Auer

Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.

The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns. 

This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.

This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether
Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. 
The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.

This Note proceeds as follows: Part I briefly details a background of the BIA, and a current understanding of Auer deference. This discussion includes Auer’s political implications, and how the Supreme Court chose not to overrule the doctrine in Kisor v. Wilkie. This Section then explores the relationship between Auer and the BIA, including why the BIA’s political vulnerability makes the agency particularly unfit for Auer deference. Certain appointees to this agency have been rewarded with a position as a board member by openly declaring their hostility to the very people who are the object of the agency’s mission, and whose fragile life prospects are in their hands. Ironically, this flips the partisan commitments normally seen in the world of administrative law as follows: Those who would classically support increasing agency discretion by according Auer deference should be worried about giving heightened power to the self-declared, anti-immigrant agenda pervading the BIA, while those who would classically resist excessive delegation and deference to agencies, because of their limited accountability, seek to endow the BIA with vast independence and partisan manipulation. Part II argues that even in the wake of Kisor v. Wilkie, deference to the BIA’s interpretations of immigration regulations presents a heightened threat to constitutional principles of separation of powers and democracy. Part III then provides a potential solution to the inadequacy of Auer deference and the judicial role in the realm of regulatory gap filling for immigration laws. 
 

* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.

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Not a Vara Big Deal: How Moral Rights, Property Rights, and Street Art Can Coexist

Note | Intellectual Property Law
Not a Vara Big Deal: How Moral Rights, Property Rights, and Street Art Can Coexist
by Mary Daniel*

94 S. Cal. L. Rev. 927 (2021)

Keywords: Street Art, Copyright Law, VARA, 5Pointz

“Art Murder”—the accusation was sprayed in red paint onto the side of real estate developer Jerry Wolkoff’s Long Island City building.1 Underneath the denunciation was a patchy layer of white paint, and underneath that layer, decades of graffiti art that once made up 5Pointz, “the world’s premier graffiti mecca.”2 Aerosol artists from around the world travelled to the Queens neighborhood for a chance to contribute to the de

facto street art museum.3 However, the buildings that served as the artists’ canvas belonged to Wolkoff, and in 2013, hoping to benefit from the growing housing market in Long Island City, Wolkoff announced plans to raze the former factory buildings to make room for luxury high-rise condominiums.4 The potential destruction of 5Pointz caused a frenzy in the art community as artists scrambled to prevent the popular site’s demolition.5 Then, all hopes of preserving the artwork ended on the morning of November 19, 2013, when 5Pointz’s curator, Jonathan Cohen,6 awoke to discover that, at the direction of Wolkoff, more than 10,000 artworks covering 200,000 square feet were unceremoniously covered over with white paint in the middle of the night.7

Artists responded to the whitewashing by bringing suit under the Visual Artists Rights Act of 1990 (“VARA”), codified at 17 U.S.C. §106A, claiming that the destruction of the artwork was a violation of the artists’ moral rights.8 Moral rights are a relatively new feature of United States law and a feature that seemed improbable through much of the development of copyright law.9 However, in a surprising decision, the district court found in favor of the artists. Holding that painting over 5Pointz was unlawful, Judge Block ordered Wolkoff to pay the artists $6.7 million in damages.10 The decision marked the first time graffiti art was extended VARA protection.11 Wolkoff immediately appealed the district court’s decision, but in February 2020, the Second Circuit upheld Judge Block’s decision in its entirety.12

The ruling has been heralded by many as a big win for artists’ rights

that signifies courts’ growing recognition and respect for artists working in atypical mediums.13 However, many others have expressed concern that such an expansion of VARA is at odds with property law and signifies a dangerous trend of artists’ rights superseding property owners’ rights.14 Moral rights run counter to the United States’ traditionally utilitarian approach to copyright law, and the 5Pointz ruling exemplified the inevitable conflict between moral rights and property rights. Additionally, the street art movement has a reputation as a fringe community, with the term “street art” often used to describe both lawfully and unlawfully created artwork. By extending VARA protection to the unconventional medium, opponents worry that the court lowered VARA’s standard and opened the door for other mediums to push the limits of the statute.15 Fueling this anxiety, there have been other artists seeking the shelter of VARA following the 5Pointz ruling. For example, the Blued Trees movement, started by artist and activist Aviva Rahmani, is an art installation affixed to trees along planned natural gas pipeline pathways.16 Rahmani has successfully filed the project for copyright registration and hopes to use the moral rights granted by VARA to prevent the removal of the trees.17 These concerns have led to demands for the 5Pointz ruling to be overturned or for VARA to be amended, or even repealed, so as to limit its interference with property rights.18

This Note argues that VARA’s application to street art is appropriate and not something for property owners to fear. While moral rights undoubtedly conflict with property rights, it is important for the United States to recognize moral rights in order to keep up with international standards and encourage creation. Additionally, street art is no longer the fringe movement it once was; artists such as Jean-Michel Basquiat, Keith Haring, and Banksy have helped sway the public opinion of street art away from viewing it as vandalism and towards viewing it as a legitimate artistic

medium worthy of additional copyright protection.19 Finally, the language of VARA is intentionally limiting and leaves a lot of interpretation to the courts.20 Generally, courts have been hesitant to apply VARA unless clearly warranted, suggesting that cases such as Blued Trees should not be a cause for panic given the court’s careful application of VARA.21

Part II of this Note explores the development of United States copyright law. Particular emphasis is put on the resistance to the concept of moral rights. Part III discusses the 5Pointz ruling and analyzes critics’ arguments against the holding and against moral rights in general. This Part also explores the potential ramifications of the 5Pointz ruling. Part IV argues that this recent application is appropriate and not a cause for concern about overreaching. The arguments against V ARA are also addressed and concluded to be unpersuasive. The appropriateness of the application of VARA to street art is supported by public opinion and judicial interpretation, while future overreaching is prevented by the statute’s limiting language and a careful court. Blued Trees is used as an illustration of the ease with which a court can deny VARA protection. Finally, Part V suggests that VARA offers appropriate coverage presently, but future expansion of VARA may be necessary.

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*. Executive Senior Editor, Southern California Law Review, Volume 94, J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Communications and Fine Art 2015, Loyola University Maryland. Thank you to Professor Sam Erman for his guidance during the drafting of this Note. Additionally, thank you to my friends and family for their support and feedback. Finally, thank you to all the Southern California Law Review editors for their hard work.

 

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Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting

Note | Constitutional Law
Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting
by Ryan Eason*

94 S. Cal. L. Rev. 963 (2021)

Keywords: Election Law, Voting, Constitutional Law

The Preamble to the United States Constitution envisions a nation governed by “We the People.”1 The United States has never been governed by the people, however. Instead, the United States is and always has been run by the voters. Voters are wealthier, more educated, older, and whiter than “the People.”2 These differences have consequences. Since voters hold the key to lawmakers’ job security, representatives are often more responsive to voters’ interests than nonvoters’ interests.3

The reason voters differ so much from the population4 as a whole is that voter turnout is consistently low in the United States. In federal midterm elections since the passage of the Voting Rights Act in 1965, voters have only constituted an average of 41.4% of the population.5 Even in presidential elections, in which voters usually do make up a majority of the population, the majority is usually bare.6 Consequently, the winners of those elections

are chosen by nowhere near a majority of the population. For example, President Donald Trump was elected by roughly 27% of the population in 2016.7 Even President Joe Biden, who won the largest number of votes for a presidential candidate in United States history, was elected by roughly 34% of the population in 2020.8 These low voter turnout figures set the United States apart from most of the developed world.9

Of course, low levels of voter turnout do not delegitimize elections in the United States. Other major democracies also do not achieve full voter turnout.10 Electoral legitimacy would be impossible to realize if it depended on full voter turnout in every election. However, many argue that low voter turnout in the United States is a serious problem.11 To the extent a country values majoritarianism,12 its elections arguably serve that purpose better

when the gap between its voters and its population is minimized. One day, Congress may agree with this argument. Therefore, this Note imagines a world in which Congress takes a decisive step to fix low voter turnout: compel every eligible American adult to vote.13

Congress is unlikely to pass such a transformative piece of legislation in the near future. However, it might enact compulsory voting someday. Far from being a fringe or radical idea, it has been implemented by several democracies,14 and it has been successful where actually enforced.15 Indeed, commentators often cite compulsory voting as a solution to the United States’ low voter turnout problem.16 Compulsory voting legislation has even been recently proposed at the statewide level in California.17

But if Congress decided to pass compulsory voting legislation, it would face a substantial and unanswered question: would it be constitutional? This Note intends to answer that question by analyzing how compulsory voting would fare in various constitutional challenges.18 Part I explores how compulsory voting might be structured in the United States if Congress based its legislation on Australia’s. Part II addresses the most likely constitutional challenges to compulsory voting. The structural argument addressed in Section II.A concerns whether Congress has the constitutional power to pass compulsory voting if it conflicted with state legislation. I conclude that it does because the Elections Clause gives Congress the power to supersede

state election regulations, even when states have not acted. The rights-based arguments addressed in Section II.B concern whether compulsory voting would violate the right not to speak or a potential right not to vote. I conclude that while the voting is expressive conduct, compulsory voting would not violate the First Amendment by compelling it. I also conclude that there is likely no such thing as a right not to vote. However, if there is a right not to vote, the interests served by compulsory voting would outweigh the light burden upon it. Finally, Section II.C argues that compulsory voting legislation could be legally justified as a tax.

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*.2021, University of Southern California Gould School of Law. This Note has benefited greatly from the guidance of Professor Sam Erman; the support from my fiancée, Katie Bayard; and the astute editing of my colleagues at the Southern California Law Review.

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How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It by Abigail Sellers

Article | Consitutional Law
How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It
by Abigail Sellers*

From Vol. 94, No. 3
94 S. Cal. L. Rev. 691 (2021)

Keywords: First Amendment, Reproductive Health, Abortion, Roe v. Wade

On May 15, 2019, Alabama Governor Kay Ivey signed the Alabama Human Life Protection Act into law.1 The Act imposes serious punishments on doctors who perform an abortion unless it “is necessary in order to prevent a serious health risk to the unborn child’s mother,” there is an ectopic pregnancy, or the fetus has a “lethal anomaly.”2 Notably, the Act does not provide an exception for pregnancies resulting from rape or incest.3 Of particular interest to this Note are statements made by Alabama lawmakers indicating this law was passed to comport with their and Alabama citizens’ religious belief that “every life is a sacred gift from God.”4 Furthermore, Alabama lawmakers are keenly aware the law is in violation of a woman’s right to terminate a pregnancy as protected under the Fourteenth Amendment Due Process right to privacy.5 In fact, the Act was designed to challenge the cases establishing and upholding this right—Roe v. Wade and Planned Parenthood v. Casey—in the hopes that the Supreme Court will overrule these precedents.6

Even more disconcerting to reproductive health advocates, Alabama was only one of seven states that passed laws in 2019 severely restricting access to abortions.7 The six other states—Georgia, Kentucky, Louisiana, Missouri, Mississippi, and Ohio—criminalized abortion after six to eight weeks of pregnancy when a fetal heartbeat can be detected.8 These are aptly referred to as “heartbeat laws.” The passage of these laws was marked by religious statements from state lawmakers, and some of these laws have been expressly designed to challenge Roe.9

With a challenge to each of these laws making its way through various federal courts,10 it is possible that the Supreme Court will hear a case involving one or more of these laws and will once again get a chance to reconsider its holdings from Roe and Casey.11 This Note will argue that the Court should never reach the privacy issue at the heart of Roe and Casey. Instead, exercising judicial restraint, the Court should decide only as much as is necessary to resolve the case in front of it12 and should deem the Alabama Human Life Protection Act and the six heartbeat laws unconstitutional under the First Amendment’s Establishment Clause. Under current Supreme Court precedent, when a law lacks a sincere secular purpose, it violates the Establishment Clause,13 and as the previously mentioned religious statements by lawmakers indicate, the purpose behind these laws is not secular. Thus, the Court should never reach the privacy issue.

This Note will (1) examine the history of the debate surrounding abortion in American politics to show how Roe and Casey are once again ripe to be challenged, (2) explain the need for a new approach to challenge the abortion laws in question based on the current composition of the Supreme Court, (3) argue that the laws violate the Establishment Clause, and (4) explain why an Establishment Clause claim is worth pursuing.

*. Editor-in-Chief, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biochemistry & B.A. Spanish, 2018, Arizona State University. I would like to thank Melissa Sellers, Dave Sellers, Perry Vargas, and the rest of my Sellers & Vargas family members for their support throughout my time in law school. I would also like to thank Professor Rebecca Brown for her feedback. Finally, many thanks to all the Southern California Law Review for their invaluable work on my piece.

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An Empirical Study of the Enforcement of Liquidated Damages Clauses in California and New York by Luca S. Marquard

Article | Remedies
An Empirical Study of the Enforcement of Liquidated Damages Clauses in California and New York
by Luca S. Marquard*

From Vol. 94, No. 3
94 S. Cal. L. Rev. 637 (2021)

Keywords: Liquidated Damages, Penalty Clause, California Law, New York Law

A liquidated damages provision is a contract clause that predetermines the measure of damages in case a party breaches an agreement. Liquidated damages clauses are among the most commonly used contract clauses and are standard practice in most commercial agreements.1 Parties typically include such clauses in their contracts in an attempt to minimize anticipated litigation time and cost and to avoid the unpredictability of courts’ damages calculations. The renegotiation leverage gained from a liquidated damages clause provides incentive for a party to bargain for the inclusion of such a clause, especially if the party considers itself likely to be the nonbreaching party in any potential dispute. However, in reality, the security parties get from including a liquidated damages clause in their agreement is far from absolute. While certain types of liquidated damages clauses are more likely to be enforced than others, these clauses cannot confidently be relied on by practitioners. Despite a common perception to the contrary, this Note will show that such unreliability exists across jurisdictions.

American courts distinguish between valid liquidated damages clauses and penalty clauses. Simply put, a valid liquidated damages clause compensates the nonbreaching party in the case of breach, while a penalty clause, as its name suggests, penalizes the breaching party and by its coercive nature serves to induce performance.2 The distinction between these two clauses, which is often difficult to make, is an important one: while liquidated damages clauses are enforceable, penalty clauses are unenforceable as being against public policy.3 Whether courts should continue to follow this distinction has been the subject of extensive scholarly debate. Rather than adding another voice to the clamor, this Note will take the current distinction between liquidated damages and penalty clauses as given.

Instead, this Note will examine and compare how courts in New York, the most important American contract law jurisdiction,4 and in California, the state with the largest economy,5 have applied the distinction in recent years. This Note will discuss trends in enforcement and reasoning gleaned from the detailed study of over fifty of the latest court decisions on the enforceability of liquidated damages clauses in each California and New York. In doing so, this Note will test the validity of two hypotheses. The first hypothesis is that courts across jurisdictions are more likely to enforce liquidated damages clauses if the parties to the agreement are sophisticated. The second hypothesis is that New York courts are more likely than California courts to enforce liquidated damages clauses, and that this difference is most pronounced in consumer contracts.

Part I of this Note will provide an overview of the policy debate regarding whether the law should distinguish between liquidated damages clauses and penalty clauses and thus refuse to enforce penalty clauses. This Part will explain the most important arguments both in favor of and against enforcing penalty clauses and point out an argument regarding the theoretical foundation of liquidated damages.

Part II of this Note will describe the current state of the law of liquidated damages, articulating both the formal doctrine and how recent cases have interpreted it. This Part will outline the research methodology used for this project, give an account of first California and then New York law, before making a preliminary comparison of the approaches taken in the two jurisdictions.

Part III of this Note will discuss current trends in the enforcement of liquidated damages clauses in both California and New York, addressing characteristics of common transaction and clause types.

Part IV of this Note will analyze the importance of parties’ sophistication and the negotiation process to courts’ decisions on the enforceability of liquidated damages clauses.

This Note will make two significant contributions to the legal scholarship in this area. First, by describing the findings of an extensive empirical case survey, this Note will provide practitioners with an on-the- ground view of how courts actually treat liquidated damages clauses. This will give attorneys and their clients a better understanding of whether to include liquidated damages clauses in their agreements, how to phrase them, and, when considering breaching an agreement, whether a clause is likely to be enforced.

Second, this Note will ultimately draw several significant conclusions from this empirical analysis. The first being that there is no significant difference between California and New York courts’ treatment of liquidated damages clauses. Courts in both jurisdictions are more likely to enforce liquidated damages clauses in agreements between sophisticated parties. Further, there is no significant difference between how California and New York courts enforce liquidated damages clauses, both generally and against consumers and unsophisticated parties. This Note argues that this is due, at least in part, to the importance of sophistication and negotiation in courts’ determination of the enforceability of liquidated damages clauses. The absence of a significant difference between California and New York courts’ enforcement of liquidated damages clauses calls into question the widely held belief that New York courts take a formalist approach to contract law and that this makes New York an appealing jurisdiction for parties to business contracts. While New York law is the law of choice for parties to commercial contracts and generally preferred over California law,6 where liquidated damages clauses are concerned, parties choosing New York law likely do not receive the benefits they expect from their choice of law.

*. Senior Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Economics 2018, University of California, Irvine. Thank you to Deena and Lora Fatehi for their unwavering support and companionship during the writing process. In addition, thank you to Professor Jonathan Barnett for encouraging me to pursue this topic and for his guidance during the drafting of this Note. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

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Big Data in Health Care– Predicting Your Future Health by Kristina Funahashi

Note | Health Care & Life Sciences
Big Data in Health Care — Predicting Your Future Health
by Kristina Funahashi*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 355 (2021)

Keywords: Health Care & Life Sciences; Data Privacy

Predictive analytics—a branch of data analysis that generates predictions about future outcomes through the power of computers to process large amounts of data using statistical modeling and machine learning—is increasingly applied in health care. While it has the potential to improve patient health and lower health care costs, the ability to peer into people’s future health status has also raised significant concerns about privacy and patient self-determination. Part I of this Note explains predictive analytics and machine learning in healthcare; it discusses data sources (which may not all be medical records) and examines several predictive analytics models. It concludes by assessing the risks posed by predictive health analytics, including psychological harms to patients and discrimination by healthcare insurers, healthcare providers, and employers. Part II summarizes existing federal data privacy and nondiscrimination legislation relevant to healthcare information in order to assess where the law leaves gaps regarding the regulation of predictive health data. By comparing predictive health analytics with genetic testing—another method of predicting an individual’s risk of disease where laws have been enacted to protect perceived “misuses” of test results—Part III reaches conclusions about how the law could treat the use of predictive health analytics and makes recommendations about future protections for patients.

* Executive Articles Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Organismic and Evolutionary Biology 2014, Harvard University. I would like to thank Professor Alexander M. Capron for his invaluable guidance and insights during the drafting of this Note. I would also like to thank the Southern California Law Review Staff for their incredibly detailed and diligent assistance throughout the editing process. Last but far from least, a heartfelt thank you to my grandfather, Jerry D. Wu, M.D., and my parents, Lenora and Ted Funahashi, for their unwavering encouragement, love, and support.

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Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs by Alisha Nguyen

Note | Military Law
Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs
by Alisha Nguyen*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 129 (2021)

Keywords: Military Law, Armed Forces, Domestic Violence

 

In 2012, former Air Force Major Thomas Maffei shot his ex-wife Kate Ranta and her father multiple times point blank in her Parkland, Florida apartment—right in front of their four-year-old son, who screamed, “Don’t do it Daddy, don’t shoot Mommy.”1 Although Ranta had reported Maffei’s physical abuse to his commanding officer almost two years prior, the military protected him because “charging him would cause him to lose his pension.”2 It was not until after the shooting that he was convicted in civil court and sentenced to sixty years in prison.3

Fortunately, Ranta and her father both survived.4 Seven years later, on September 1, 2019, she appeared before the House Armed Services Committee (“HASC”) as one of three military domestic abuse survivors who testified at the Committee’s first hearing on domestic violence in over fifteen years.5 Each of their stories was connected by a common thread: when the military system failed to protect them, the survivors found justice through the civilian system.6 Ranta explained that “[a]ll of this was avoidable.”7 After enduring years of abusive behavior, she holds Maffei’s command “fully responsible” because they knew he was dangerous but “chose to not do a thing about it.”8

Ranta’s testimony illustrates a broader, unresolved problem that domestic violence victims face when protection offered by the military does not extend into the civilian realm. Congresswoman Jackie Speier, who led the HASC hearing, described domestic violence in the military as a “forgotten crisis” that continues to resurface as survivors “tell and retell their stories” to deaf ears.9

Time and time again, military spouses fall through the cracks in a system that essentially allows commanding officers to play judge, jury, and executioner in domestic violence cases.10 This Note focuses on one particular aspect of the gap between military and civilian jurisdictions: the unenforceability of military protective orders by civilian law enforcement and courts. For example, on November 5, 2017, a gunman with a record of domestic violence offenses massacred twenty-six and wounded twenty-two churchgoers in Sutherland Springs, Texas.11 Despite being subject to a military protective order and no-contact order, he was able to pass multiple background checks and illegally purchase firearms on six different occasions.12 The orders were never submitted to any national criminal databases because they “were issued by his military commander and not a court.”13

Although the law now requires all military-issued protective orders to be reported to civilian law enforcement,14 these orders still are not given full faith and credit beyond military jurisdiction. This Note attempts to bridge this jurisdictional gap by proposing a new system through which military domestic abuse victims could obtain military-issued protective orders that are enforceable by civilian law enforcement and courts. Part I sets the stage with a brief overview of the military justice system and its approach to domestic abuse. Part II describes the two types of protective orders generally available to military domestic violence victims—military protective orders (“MPOs”) and civil protective orders (“CPOs”)—and summarizes their respective advantages, shortcomings, and barriers to access. In particular, this Part homes in on one of the main shortcomings of MPOs—their unenforceability by civilian authorities—and explains that are issued exclusively by the allegedly abusive service member’s commanding officer rather than by a neutral military judge.

Part III seeks to address this shortcoming by looking to domestic violence temporary restraining orders (“TROs”) as a model for reform. Applying an analytical framework from Blazel v. Bradley,15 this Part concludes that in order to create civilian-enforceable MPOs, Congress should develop an alternative process that closely mirrors the TRO process and satisfies the minimum procedural protections set forth in Blazel.

Part IV proposes a new system that gives military judges and magistrates the power to issue a new kind of MPO, which this Note refers to as judicial MPOs (“JMPOs”). In theory, a JMPO system would produce protective orders that are both military-issued and civilian-enforceable by shifting decision-making power from commanding officers to the military judiciary. Part IV then concludes with three specific recommendations for improving protection for military domestic violence victims, as well as a summary of Congress’s past and present support for these ideas.

A few notes on focus and terminology may be helpful at the outset. First, this Note discusses only situations in which an abusive service member commits acts of domestic abuse against a civilian spouse. Of course, civilians also commit domestic violence against service members; but because MPOs can be issued only against service members, such offenses raise issues that are beyond the scope of this Note.16 Second, although the terms “victim” and “survivor” are both used to describe individuals who are experiencing or have experienced domestic abuse, this Note primarily uses the term “victim” due to its focus on military spouses dealing with ongoing domestic violence.17 Finally, this Note generally refers to victims and survivors of domestic abuse with female pronouns and perpetrators with male pronouns. This choice reflects available empirical data; while male survivors and female perpetrators certainly exist, historical and recent statistics show that the vast majority of active-duty offenders are male.18

*. Scribes Award Recipient & Senior Submissions Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Economics 2017, University of California, San Diego. I would like to thank Drs. Dwight Stirling and CarolAnn Peterson for their invaluable insights on the substance of my paper, and Professor Sam Erman for his guidance throughout the note-writing process. I am also grateful to the entire Southern California Law Review team for their excellent editing work. Above all, thank you to my family and friends for their unconditional love and encouragement in all of my pursuits. None of this could have been possible without your unwavering support.

 

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Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans by Avery Nelson

Note | Healthcare & Life Sciences Law
Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans
by Avery Nelson*

From Vol. 94, No. 1
94 S. Cal. L. Rev. 139 (2020)

Keywords: Healthcare & Life Sciences Law, Biotechnology, Public Policy

 

People have been striving for human “perfection” for as long as human civilization has existed, sometimes with questionable and even catastrophic results.1 The idea of perfecting the human population led to eugenics, the nineteenth and early twentieth-century philosophical movement to “breed better people.”2 Eugenics ultimately laid the framework for forced sterilization laws in a number of countries, including the United States, where lawmakers prohibited certain people from procreating.3 As appalling as forced sterilization was, eugenics took an even darker turn leading up to and during World War II when Nazi Germany murdered millions in the name of creating a superior Aryan race.4 Adolf Hitler did not come up with the concept of genetic purity on his own.5 “In fact, [Hitler] referred to American eugenics in his 1934 book, Mein Kampf.”6 Although eugenics lost momentum after these atrocities,7 the idea of human enhancement has continued. Today, scientific advancements in gene-editing technology offer a new take on human modification.

Gene editing is a group of technologies that enable scientists to change an individual’s DNA.8 Genetic material can be added, removed, or altered at particular locations in the genome.9 One such gene-editing technique is the revolutionary technology called CRISPR-Cas9, short for “clustered regularly interspaced short palindromic repeats” and CRISPR-associated protein 9,10 which was discovered in 2012.11 In 2013, groups of scientists led by Feng Zhang and George Church used CRISPR to edit human cell cultures for the first time.12 By 2015, Chinese scientist Puping Liang used CRISPR to edit the genes in human tripronuclear zygotes.13 CRISPR has generated much excitement in the scientific community because it is faster and cheaper, as well as more accurate and more efficient than any other existing method to genetically alter DNA.14 This is of particular interest in the prevention and treatment of diseases, because CRISPR has the potential to correct mutations associated with single-gene diseases such as cystic fibrosis, sickle-cell anemia, and hemophilia, as well as complex diseases such as cancer, heart disease, and HIV infection.15

However, CRISPR has rekindled debates about the numerous social, ethical, and policy concerns of genetic manipulation.16 These concerns become even more complicated with germline gene editing, which results in changes in sperm, eggs, or embryos that will be passed on to the next generation.17 Critics of germline editing worry about the potential for “designer babies,” children whose traits, including eye color, height, and even athletic ability, are modified by gene editors at the request of their parent-consumers.18 Genetically modified babies remained speculative until November 2018, when Chinese scientist Dr. He Jankui announced that he had created the world’s first “CRISPR babies,” twin girls named Lulu and Nana.19

To conduct his experiment, Dr. He recruited couples in which the men had HIV infection and the women did not.20 After creating embryos by fertilizing the eggs with the sperm, Dr. He used CRISPR to edit the embryos and disable a gene that helps HIV enter healthy cells, for the purpose of giving the twin girls resistance to HIV.21 Notably, however, “Dr. He admitted that the edit was not successful in one of the embryos, and it is unclear whether it was completely or even partially successful in the other.”22 Dr. He’s experiment generated an outpouring of criticism and hand-wringing from scientists and bioethicists around the world, who labeled him a “rogue” scientist23 whose unethical experiment was “amateurish” and “unconscionable.”24 The safety risks and long-term effects of Dr. He’s experiment will remain a mystery for years to come, meaning the twins will likely be studied for the rest of their lives.25 Although Lulu and Nana brought bioethical considerations of gene editing to the forefront, researchers are still striving to advance CRISPR technology, with one of the most recent developments occurring right now in New York City.26

Currently, reproductive biologists at Weill Cornell Medicine are making the first attempt at genetically editing the DNA in human sperm using CRISPR.27 The controversial research is aimed at preventing genetic disorders that are passed down from men, including certain forms of male infertility.28 The researchers are beginning with a gene that increases the risk of breast, ovarian, prostate and other cancers.29 Because DNA is packed very tightly inside the head of each sperm, it is difficult to insert the microscopic CRISPR tool.30 To overcome this challenge, the Cornell scientists electrically shock the sperm with the goal that the shock will cause the cells to loosen up for a moment so that CRISPR can get inside.31 June Wang, a lab technician conducting the experiments at Cornell, admits that “[i]t’s kind of a weird concept” but states that “it works pretty well.”32

Although the experiments are still underway and are not yet successful, the research raises many of the same hopes—and fears—as editing the genes in human embryos.33 Nevertheless, the researchers defend their work.34 Gianpiero Palermo, who runs the lab where the experiment is being conducted, states, “I think it’s important from the scientific point of view to investigate in an ethical manner to be able to learn if it’s possible.”35 Palermo went on to say, “If we can wipe out a particular gene, it would be incredible.”36 However, Françoise Baylis, a bioethicist at Dalhousie University in Canada who is advising the World Health Organization, expresses the view that editing DNA in sperm raises the same troubling questions as editing DNA in embryos.37 In addition to safety concerns for resulting babies and future generations in the event that the genetically edited sperm is used, there are profound ethical and social concerns about conducting the research in the first place.38 As bioethicist Ben Hurlbut put it,

There’s reason to worry about undertaking the research before we’ve asked the question properly whether we would ever actually want to use those techniques . . . . Once those techniques are developed, it becomes much harder to govern them. If you’ve done the hard work of developing the recipe, someone else can bake the cake.39

The willingness of researchers to develop human uses of CRISPR demonstrates the pressing need to regulate such advancements and, in particular, its possible use to genetically edit human sperm. Part I of this Note will provide a scientific background necessary to understand genetically edited sperm, including a brief history of relevant scientific advancements, a discussion of CRISPR-Cas9 technology, and an explanation of somatic cells and germline cells. Part II will analyze various ethical considerations regarding editing human sperm, including safety concerns, informed consent issues, the debate between treatment and enhancement, and the potential for new forms of social inequality. Part III will discuss the most applicable regulations in the United States under the Food and Drug Administration and National Institutes of Health, and ultimately conclude that as it stands, the law is unprepared for the development of genetically edited sperm. Part IV will propose a resolution to address these concerns, including a federal licensing regime, a call for public engagement, and regulations to mitigate equality and accessibility concerns if sperm editing is commercialized.

* Senior Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Finance 2017, University of Florida. I thank my family, friends, and the fantastic editors of the Southern California Law Review for their support and guidance throughout the publication process.

 

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Rearranging Fair Use: A Critical Analysis of Kienitz v. Sconnie Nation by Eric Wolff

Note | Intellectual Property Law
Rearranging Fair Use: A Critical Analysis of Kienitz v. Sconnie Nation
by Eric Wolff*

From Vol. 94, No. 1
94 S. Cal. L. Rev. 83 (2020)

Keywords: Intellectual Property Law, Fair Use, Kienitz v. Sconnie Nation

The Seventh Circuit’s 2014 opinion in Kienitz v. Sconnie Nation has played an outsized role in the discourse on fair use, an affirmative defense to copyright infringement.The opinion is quite short, spanning just over three pages, and it emerged from a circuit that produces relatively few fair use opinions.Yet Kienitz is often cited for its rejection of “transformative use,” a relatively new but influential concept that has reshaped fair use doctrine.3  The court in Kienitz warned that transformative use threatens to replace the four-factor test for fair use found in § 107 of the Copyright Actand could erode authors’ exclusive rights to produce derivative works” based on their original works.In place of transformative use, Kienitz proposed that courts should simply stick with the statutory list” of four factors when analyzing fair use.The opinion applied this approach by focusing its analysis on factors three and four: the amount of the copyrighted work used and the effect of that use on the market for the copyrighted work.7

Is Kienitz’s approach a viable model for analyzing a fair use defense without relying on transformative use? The answer is no. This Note concludes that Kienitz’s reasoning is fundamentally flawed and suffers from many of the same infirmities it identified in transformative use.8

There are three problems with Kienitz’s reasoning. First, its approach to factor four defines the scope of derivative works in a way that would severely limit authors’ rights.Second, it employs a test, known as the  substitute/complement test,” which tends to underestimate market harm.10 Finally, its analysis of factor three implies there was no copyright infringement, which if true, would have made the fair use defense unnecessary.11 If Kienitzs amputation of transformative use was an attempt to remedy its harmful symptoms, its cure was worse than the disease.12

Although its analysis was flawed, Kienitz’s diagnosis of the problems with transformative use was accurate.13 Transformative use has been applied in a way that has come to dominate the statutory fair use factors and blurs the line between protected derivative works and fair use.14 This Note proposes two ways to restructure fair use analysis to limit the negative effects of transformative use: (1) rearrange the order in which the factors are analyzed and (2) make a finding of transformative purpose a threshold requirement of transformative use.

Part I explains how the scope of fair use has contracted and expanded throughout United States history and how transformative use has driven the current period of expansion. Part II examines the analysis in Kienitz and concludes, for the reasons described above, that it does not provide a viable alternative to transformative use. Part III demonstrates an alternative fair use analysis of the facts in Kienitz to show how the opinion could have benefited from incorporating transformative use into its analysis and by applying this Notes two proposals for restructuring fair use. In the process, Part III also reveals, and argues against, common issues in other courts’ analyses of each fair use factor, including the widespread underappreciation of factor two15 and Campbell v. Acuff-Rose Music, Inc.s unprecedented instruction to emphasize findings from factor one in the analysis of factor three.16

* Executive Senior Editor, Southern California Law Review, Volume 94; Juris Doctor Candidate 2021, University of Southern California Gould School of Law. This Note has benefited greatly from the attentive guidance and insightful comments of Professors Jonathan Barnett and Sam Erman. It would not exist without the unwavering support of my spouse Georgina and my parents Lori and Greg. I am also grateful to my colleagues at the Southern California Law Review who edify and inspire me with their excellent work.

Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection by Rosie Frihart-Lusby

Note | Constitutional Law
Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection
by Rosie Frihart-Lusby*

Vol. 93, Note (December 2020)
93 S. Cal. L. Rev. Note 1069 (2020)

Keywords: Foster Care Funding, AFDC, Equal Protection Analysis 

INTRODUCTION

This Note will consider one possible means for judicially striking down the AFDC Lookback: that it is a classification so arbitrary it violates the Equal Protection clause implicit in the Fifth Amendment. In Section I, I describe in greater depth the structure of foster care funding and the distinct roles played by the federal and state governments in the provision of funds. Next, in Section II, I elaborate on the history of the AFDC Lookback and attempt to pinpoint a rationale for its continued inclusion in the Social Security Act. In Section III, I enumerate and briefly explain common arguments as to why the AFDC Lookback is bad policy. Section IV includes a brief overview of Equal Protection doctrine—both the traditional approach utilizing tiered scrutiny and Justice Thurgood Marshall’s alternative slidingscale approach. Then in Section V, I consider the level of scrutiny a court might apply to the Lookback. Finally, in Section VI, I analyze the AFDC Lookback under both the traditional approach and Justice Marshall’s slidingscale approach, concluding in both cases that the AFDC Lookback is likely a Fifth Amendment Equal Protection violation.

____________________

*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.A., History and Film Studies 2011, University of Tulsa. Thank you, first and foremost, to Professor Clare Pastore, whose guidance and feedback throughout this process was as useful as it was thoughtfully given. Thank you to the experts and practitioners who graciously shared their time and knowledge as this Note evolved, including Professor Dara Barker, Adam Cherensky, Judge Amy Pellman, Rachel Stein, Tyler Sutherland, Professor Karen Ullman, and Professor Kimberly West-Faulcon. Thank you to the editors of the Southern California Law Review for their excellent work. Finally, thank you to my family and friends who not only offered support during this process but also served as volunteer editors.