Category: Notes

Stateless in the United States: The United Nations’ Efforts to End Statelessness and American Gender Discrimination in Lynch v. Morales-Santana – Note by Rick Zou

From Volume 90, Number 1 (November 2016)
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In 2014, the United Nations initiated a plan to end statelessness, the widely deplored condition in which a person does not have a nationality or the rights conferred by citizenship, which aims to fill gaps in national laws that contribute to statelessness. One such gap exists in the United States’ Immigration and Nationality Act—specifically, a gender-based physical-presence requirement that prescribes how American parents can confer citizenship to their children. The Second Circuit, reviewing the physical-presence requirement, held it unconstitutional in Morales-Santana v. Lynch, despite a conflicting ruling from the Ninth Circuit, because the requirement violates the Constitution’s Equal Protection Clause. Having granted certiorari to Morales-Santana, the Supreme Court must take this important opportunity to affirm the Second Circuit to ensure that no American citizen is made stateless by a wrongful interpretation of the Immigration and Nationality Act. This Note explores relevant domestic and international laws and conventions and explains why affirming the Second Circuit in Morales-Santana is consistent with both the United Nations’ efforts to end statelessness and the U.S. Constitution.

 

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Redressing the Legal Stigmatization of American Samoans – Note by Joseph E. Sung

From Volume 89, Number 6 (September 2016)
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Although the plain text of the Fourteenth Amendment states that “[a]ll persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States,” “[t]ens of thousands of Americans who hold U.S. passports are” not legally recognized “as U.S. citizens.” How is this possible? The answer is that these Americans were born in the United States territory of American Samoa rather than anywhere else in the United States.

American Samoa is an “unorganized unincorporated territory” of the United States, located 2,500 miles south-southwest of Honolulu and 1,800 miles north-northeast of New Zealand in the South Pacific. Despite having been a part of the United States for over a century, American Samoa is the only United States territory in which its people are not granted United States citizenship by virtue of birth within the territory. The federal government classifies American Samoans as “non-citizen national[s],” a legal status subordinate to that of full citizenship.

 

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Packing Heat: Judicial Review of Concealed Carry Laws Under the Second Amendment – Note by Kevin Behne

From Volume 89, Number 6 (September 2016)
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The regulation of firearms is one of the most volatile policy issues in the United States. Virtually every effort to regulate—or deregulate—the accessibility or usage of firearms raises dueling concerns of public safety and individual rights. Federal courts are no exception to the controversy, offering a microcosm of the broader public debate. The Supreme Court’s sharply divided decisions in District of Columbia v. Heller and McDonald v. City of Chicago are illustrative of the point; while Heller established the Second Amendment right to keep and bear arms in the individual context, and McDonald extended the right as fundamental and binding on the states, the decisions did little to fix the scope and magnitude of the newly created right, leaving it open to spirited debate. In the wake of the two decisions, lower courts have been left to grapple with how far and with what rigor to scrutinize state and local laws that may burden the right to keep and bear arms.

People may kill and injure people, but guns appear to be a weapon of choice. In the United States alone, there are over 32,000 firearm-related deaths annually and an additional 78,000 persons are injured as a result of interpersonal firearm violence. While a significant portion of the casualties are attributable to suicides, accidents, law enforcement, or self-defense, an appreciable portion are the product of criminal activity. Although exact numbers are difficult to ascertain, the Department of Justice estimates that each year, approximately 470,000 persons become victims of a crime committed with a firearm. But perhaps the most visible manifestations of gun violence are “mass shooting” incidents, drawing substantial media coverage and public concern. These variables, among others, animate concerns of public safety, giving rise to policy arguments for more stringent regulations of firearms.

 

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Secrecy, Standing, and Executive Order 12,333 – Note by Charlotte J. Wen

From Volume 89, Number 5 (July 2016)
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In summer of 2013, the National Security Agency (“NSA”) rocketed into headlines when Glenn Greenwald, a reporter at the Guardian, broke a stunning, Orwellian story: pursuant to top-secret court orders, Verizon and other major telephone service providers had granted the NSA blanket access to their American customers’ call records. These companies, Greenwald claimed, were providing the NSA with telephony metadata—general information about each of their customers’ calls, such as phone numbers, call lengths, and call times. In the face of the ensuing public outcry, the American government acknowledged the existence of the telephony metadata program. In doing so, however, it was careful to assert that the program, while secret, was nonetheless constitutional, and that the court orders had been issued pursuant to the Foreign Intelligence Surveillance Act (“FISA”).  

 

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How Vague is too Vague?: Resurrecting the Void-for-Vagueness Doctrine in the Context of the Armed Career Criminal Act – Note by Ava Miller

From Volume 89, Number 5 (July 2016)
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 In Georgia, Shawntrail Lee was convicted of possessing a firearm as a felon, —a crime that warranted a sentence of roughly three to four years in prison under the Federal Sentencing Guidelines. However, Lee’s prescribed sentencing range increased to a minimum of fifteen years under the Armed Career Criminal Act (“ACCA”) because his criminal history included three other crimes that the district court classified as “violent felon[ies].” Lee appealed his sentence, arguing that his predicate conviction of conspiracy to commit armed robbery did not constitute a “violent felony,” and the Eleventh Circuit Court of Appeals agreed, vacating his sentence.
 
Conversely, in North Carolina, Demontrell White was convicted of possessing a firearm as a felon and was sentenced to fifteen years in prison after the Fourth Circuit Court of Appeals determined that his prior conviction of conspiracy to commit robbery with a dangerous weapon was a “violent felony” under the ACCA.
 

 

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Clear Skies Ahead: Why the Supreme Court’s Decision in Aereo Should Have Limited Copyright Implications on Cloud Technology – Note by Mark Cikowski

From Volume 89, Number 4 (May 2016)
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Despite Justice Scalia’s dissent and the claims of Aereo and its amici, this Note will argue that, when viewed on the whole, any potential fears that the Aereo decision could implicate the legality of cloud-based technology or affect copyright infringement analysis with respect to this industry are likely unwarranted. First, there are substantial structural differences between how Aereo operated and how cloud-based services (particularly remote storage systems) continue to run. Second, the Aereo decision is a narrow response particularly attenuated to that company’s practice of functioning like a traditional cable system while failing to pay the fees required by such systems when they rechannel broadcast networks’ signals. Thus, because the case addresses such a specific factual scenario, its holding is unlikely to be extended to other cloud-based services. To illustrate this point, Part I will discuss Aereo’s technology to clarify how the system physically functioned to stream practically live television through the Internet. Part II will analyze the key reasons why the Supreme Court found this particular technology to violate the networks’ rights, while also analyzing Justice Scalia’s concerns about potential fallout from the majority opinion, particularly with respect to the cloud industry. And finally, Part III will contrast Aereo’s technological infrastructure with that of several common cloud-computing service providers and will examine the shortcomings of the argument that Aereo leaves in flux: the legality of cloud-computing services and the copyright infringement analysis with respect to those services.
 

 

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We Are Not Interested: How Dominant Political Parties Use Campaign Finance Law to Lock Interest Groups and Third Parties Out of the System – Note by Rowley Rice

From Volume 89, Number 4 (May 2016)
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The scholarship on “politics as markets” reveals that dominant political parties use “lockups” to control the political system. So stronger, process-oriented judicial review is necessary to disrupt existing lockups. This Note comparatively applies this scholarship to campaign finance laws in the United States and United Kingdom. It shows that these countries’ campaign finance regimes function as lockups that permit the major parties to dominate their countries’ politics. Lockups allow these parties to control elections and the national discourse. These campaign finance lockups raise significant normative concerns because they restrict alternative voices’ political participation. This challenges democracies’ need for varied, pluralist free speech. In both nations, judicial review has disrupted the system and weakened these lockups, but this disruption has been more extensive in the United States. Finally, this disruption may bring its own costs by giving wealthy elites further, disproportionate speechmaking power.

 

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Can Henderson or Lawson Repair the Golden State’s Less-Than-Golden Treatment of Eyewitness Identification Reform? A Call for Judicial Intervention in California – Note by Morgan Schwartz

From Volume 89, Number 3 (March 2016)
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Part I of this Note provides a brief background regarding the history of the Supreme Court’s treatment of eyewitness identification, the current standard of admissibility of eyewitness identification testimony at both the federal and state levels, and the status of scientific research into eyewitness identifications today. Part II describes the changes that two states, New Jersey and Oregon, have made to their judicial frameworks to reflect the current state of empirical research into the dangers of eyewitness misidentification. This Part will also highlight how these new tests differ from the Manson framework set forth by the Supreme Court in the 1970s, which is the prevailing test for admissibility of eyewitness evidence, on which California’s existing framework is modeled. Part III will examine the pros and cons of New Jersey and Oregon’s approaches, especially in light of their underlying goals of deterring improper police conduct and obtaining reliable verdicts. Part IV describes the history of eyewitness identification reform in California and suggests that in states like California, where attempts to pass legislation modifying police eyewitness identification procedures have been unsuccessful, judicial reform similar to that of Oregon’s Lawson framework is necessary to ensure the integrity of the criminal justice system.

 

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