On June 25, 2013, as Texas State Senator Wendy Davis prepared to launch her now-famous filibuster, the Supreme Court in Shelby County v. Holder invalidated Section 4 of the Voting Rights Act (“VRA”), a crucial part of one of the most successful civil rights statutes ever enacted. This Note takes these two seemingly unrelated events as its starting and ending points. While the federal filibuster is a familiar procedural device, Davis’s effort shone a light on its underexamined state equivalent. The invalidation of Section 4 of the VRA also turned attention to the states, this time in the form of alarm bells warning of the need for state-level remedial measures to protect voting rights. This Note links those events together by recovering the history of the state filibuster to reveal how it may—and I argue, should—be used to mitigate the impact of Shelby County.
This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.
The dialogue on guns in the United States tends to fall toward one of two extremes—“everyday, guns kill good people” or “everyday, guns kill bad people.” The debate becomes a battle of values between two groups with two very different, yet very passionately held worldviews. Even legal scholarship cannot immunize itself from devolving into normative discussions founded on what the law should be, rather than providing analysis of what the law actually is. Unfortunately, a more targeted discussion arising directly out of Second Amendment jurisprudence is particularly difficult, as the U.S. Supreme Court has provided very limited guidance on the types of gun regulations that can pass constitutional muster.
After struggling to provide for her children in her native country of Mexico, Esperanza lost one of her children to starvation. Devastated, she determined to leave her children in the care of family and seek work in Los Angeles. Pursuing what she believed to be a legitimate job offer, Esperanza was instead trafficked into a U.S. sweatshop. Separated from her children and unable to send any earnings home, Esperanza was cruelly abused by her traffickers. She recalls one trafficker asserting: “Dogs have more rights than you in this country. You are here illegally. And nobody can trust you. If you go to the police they might put you in jail because you have no papers . . . and if you do something I will call to the INS and they send you back, and not only send you back, they might put you in jail.”
In 1980, twenty-one-year-old Delma Banks, Jr. was convicted of murdering sixteen-year-old Richard Whitehead outside of Nash, Texas and was sentenced to death for his crime. During the penalty phase of Banks’s trial, the question that would determine whether Banks was eligible for a death sentence was whether a probability existed that he would commit other violent crimes and continue to pose a threat to society if allowed to live. Robert Farr was an essential witness for the prosecution on this point. Farr testified that, before Banks was arrested, Farr had traveled with Banks to Dallas to pick up a pistol that he and Banks needed to commit a series of robberies they were planning. “According to Farr, Banks ‘said he would take care of it’ if ‘there was any trouble during these burglaries.’” On cross-examination, Farr perjured himself twice when asked if he had provided information about the trip to a deputy sheriff, answering that he had not. The state remained silent during this questioning.
On September 30, 2012, California became the first state in the nation to place restrictions on the practice of attempting to change an individual’s sexual orientation. The passage of this landmark legislation, known as Senate Bill (“SB”) 1172, set off a firestorm of protest, with multiple lawsuits being filed within twenty-four hours of the bill’s passage. Though the issue of SB 1172’s validity has been decided by the Ninth Circuit, which upheld the law in August 2013, other states are considering passage of similar measures, and many issues were debated minimally or not at all in the California cases. Thus, this Note seeks to examine the potential claims that may be brought on behalf of parents and children against these laws and how such challenges may be overcome. As it is thus far the only law of its kind, SB 1172 is treated as a case study and model in many parts of this Note, and some time is spent discussing the law itself in detail. For the purposes of analysis and simplicity, it is assumed that future laws will be substantively similar to SB 1172.
In late 2011, the New York City Police Department (“NYPD”) made national and international headlines when its secret surveillance of Muslims across the New York City area was discovered. Under the guise of counterterrorism, the NYPD monitored the daily lives of thousands of Muslims for about a decade, using techniques such as taking photographs, collecting license plate numbers at mosques, and utilizing informants known as “mosque crawlers” to infiltrate Muslim organizations. From recording sermons to monitoring businesses and grade schools, the NYPD targeted individuals not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.
As demonstrated by the recent Second Circuit decision in Christian Louboutin v. Yves Saint Laurent America Holding, Inc., a shoe can certainly offer a great deal of legal controversy. In September 2012, the Second Circuit upheld the validity of designer Christian Louboutin’s trademark for the color red on the soles of his shoes. Although Christian Louboutin and the fashion media have called the case a victory for color trademarks, Louboutin’s affirmation of the “aesthetic functionality” doctrine will likely make defending color trademarks harder in the future. Further, a survey of color trademark registration activity and case law reveals that the Louboutin decision is an outlier, and the overwhelming tendency of courts is to weaken color marks in infringement lawsuits. Therefore, color mark applicants and current color trademark holders face steep obstacles in registering and protecting their color marks, and this battle will likely become more challenging in the near future.
Imagine you are the CEO of a new company in Silicon Valley, California. The company recently developed a revolutionary laptop screen that is not only entirely scratch resistant, but also allows for 3-D viewing. The company just entered into a contract with Orange Computer to be the sole manufacturer of Orange’s newly advertised “Made in Silicon Valley” computer. Located among the terms of the contract is a license, which allows the company to use Orange’s applicable patent and trademarks. As a result, the company heavily invests in its new enterprise and begins to profit. A few months later, however, Orange recognizes massive losses since it did not account for higher business costs in Silicon Valley. This forces Orange to file for bankruptcy and reject the license, leaving your company unable to manufacture its product without infringing on Orange’s trademarks. This risks your company’s vitality and ultimate existence.
The scenario above illustrates an example of a modern business practice-trademark licensing-and its tension with bankruptcy law. In today’s “[n]ew [w]orld,” intellectual property (“IP”) is an extremely important economic asset for many companies. An owner of IP has the ability to either (1) prevent others from using it or (2) authorize its use to a third party through licensing. The latter practice of licensing has grown significantly in the global economy, as it is a substantial source of revenue for many companies. Additionally, using IP to secure lending from a bank has become popular. Nevertheless, the value of IP licenses is limited due to risks created by economic hardships, with trademark licenses particularly vulnerable in cases of bankruptcy. In fact, since 1988, out of 1100 bankruptcy filings concerning IP, over 600 involve trademarks.
The above quotes from two of the primary players in the for-profit college industry highlight the industry’s polarizing and divisive regulatory issues. This industry has seen unprecedented growth in recent years, increasing enrollment by 225% from 1998-2008. In fact, for-profit colleges received $32 billion in federal grants and loans from 2009-2010. This number accounted for about 25% of all federal student aid distributed despite the industry enrolling only 10-13% of all college students (about 2.4 million students). The prominence and growth of for-profit colleges is highlighted by one for-profit college’s recent entry into a Division I athletic conference.
However, recent reports of fraudulent and deceptive recruiting, and high student default rates have plagued the industry, culminating in the release of a negative Senate report by the Health, Education, Labor, and Pensions Committee (“HELP Report”). One such report was an undercover U.S. Government Accountability Office (“GAO”) report of fifteen for-profit colleges that found that each school made questionable or deceptive recruiting statements. Additionally, the HELP Report found that the average tuition at for-profit colleges exceeds that of their respective public school counterparts (for certificate programs, associate’s degrees, and bachelor’s degrees). For example, a bachelor’s degree in business administration at the for-profit Alta College in Colorado costs $80,466 compared to $60,704 at the University of Colorado Boulder.” Moreover, the Education Department recently released the three-year cohort default rate from 2009, measured by the percentage of student borrowers who entered repayment and defaulted within the past three years for a given school. The three-year default rate was 22.7% in the for-profit college sector compared to only 11% in public colleges and 7.5% for nonprofit private colleges.