Category: Postscript

Modern-Day Poll Tax: How LFO Requirements Undermine Felons’ Right to Vote

The United States of America has a notable tradition of disenfranchising its felons. Indeed, the United States disenfranchises more people than any other nation in the world.1.D. 2022, University of Southern California Gould School of Law. Geronimo is currently an associate attorney at Gibson, Dunn & Crutcher, LLP in Los Angeles, CA. The author thanks Rebecca Brown for her guidance and comments on initial drafts, as well as the staff at SCLR for their countless edits and support. As such, Americans are beginning to reconsider their support for felon disenfranchisement.2See Karina Schroeder, Majority of Americans Say Voting Rights Should Be Restored for People with Felony Convictions, Vera Inst. Just. (Mar. 22, 2018), http://www.vera.org/news/majority-of-americans-say-voting-rights-should-be-restored-for-people-with-felony-convictions [http://perma.cc/
VJV2-7KA6]. While several states have greatly restored felons’ voting rights, others impose practical or financial barriers to the franchise. One such common example of these hurdles is the legal financial obligation (“LFO”) requirement. Under these schemes, felons must first pay off any outstanding fees, fines, or restitution stemming from their conviction prior to regaining the right to vote. Given that many felons are indigent or of lower socioeconomic status, these LFOs are often the only thing excluding millions of felons from the ballot box.

One such LFO scheme exists in the State of Florida. Since the enaction of its 1838 Constitution, Florida has automatically disenfranchised people convicted of any felony.3See George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 853 n.20 (2005). However, in 2018, Florida voters passed Amendment 4, a constitutional referendum restoring the right to vote to felons not convicted of violent crimes (that is, murder and sexual offenses) who had satisfied all the terms of their sentence. The next year, the Florida Legislature passed S.B. 7066, which implemented the amendment.4See infra Section II.A. However, the law requires felons to pay off all of their LFOs before their right to vote can be restored. As a result, many eligible felons who cannot afford to pay will remain disenfranchised. Further, because the Florida Legislature failed to provide a central process (or resources) to identify and pay LFOs, many eligible felons who can pay will remain disenfranchised for an undetermined period of time until their individual cases are resolved. Despite a district court finding that S.B. 7066 was unconstitutional, the U.S. Court of Appeals for the Eleventh Circuit reversed in a 6-4 en banc decision, holding that the LFO requirement violated neither the Equal Protection Clause nor the Twenty-Fourth Amendment.

Using S.B. 7066 as a case study, this Note will argue that this scheme violates the Equal Protection Clause. I will argue that, given the importance of the right to vote, heightened scrutiny of S.B. 7066 is warranted. In the alternative, I will also analyze S.B. 7066 under rational basis scrutiny. Either way, I conclude that S.B. 7066 fails both tests. Finally, I will argue that S.B. 7066 amounts to a poll tax and is thus unconstitutional.

Statutory Interpretation in the 2020s: A View of the Cathedral

This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.

Download

Prosecuting Cybercrimes: The Case for Making the Computer Fraud and Abuse Act a Predicate Act Under the Racketeer Influenced and Corrupt Organizations Act

During the first six months of 2021, financial services firms throughout the United States raised alarms concerning nearly $600 million of transactions that were flagged as suspected payments to perpetrators of ransomware attacks.1.D. 2023, University of Southern California Gould School of Law. Meanwhile, the U.S. Department of Treasury identified another $5.2 billion of potential ransomware payments that were funneled through bitcoin transactions.2Id. In total, global ransomware attacks were expected to have accounted for about $20 billion of loss in 20213Steve Morgan, Cybercrime to Cost the World $10.5 Trillion Annually by 2025, Cybercrime Mag. (Nov. 13, 2020), http://www.cybersecurityventures.com/cybercrime-damages-6-trillion-by-2021 [http://perma.cc/U266-HWZR]. and are predicted to result in $265 billion of loss by 2031.4David Braue, Global Ransomware Damage Costs Predicted to Exceed $265 Billion by 2031, Cybercrime Mag. (June 2, 2022), http://www.cybersecurityventures.com/global-ransomware-damage-costs-predicted-to-reach-250-billion-usd-by-2031 [http://perma.cc/CMT4-MCER]. Ransomware is just one of twenty-four different categories of internet crimes identified by the Federal Bureau of Investigation (“FBI”) in its annual Internet Crime Report, and the figures cited in the report represent only a fraction of the total amount lost to cybercrime every year.5Fed. Bureau of Investigation, Internet Crime Report 2021, at 22 (2021) [hereinafter 2021 Internet Crime Report], http://www.ic3.gov/Media/PDF/AnnualReport/2021_IC3Report.pdf [http://perma.cc/3HPR-MCQN]. As the number of cybercriminals and the sophistication of their methods continue to grow and evolve, the true cost of cybercrime worldwide is estimated to reach a disastrous $10.5 trillion by 2025.6Morgan, supra note 3 (noting that the estimated $10.5 trillion loss includes not just monetary payments made directly to ransomware criminals but also costs associated with data destruction and damage, lost productivity, intellectual property theft, fraud, investigations, restoring damaged systems, and harm to reputation).

The scale and scope of cyberattacks have increased dramatically in recent years, spurred by a growing reliance on technology, increased connectivity among users, and the rise in popularity of virtual currency exchanges. Another contributing factor is that the very nature of cybercrime makes it difficult to block these attacks or punish those responsible. For example, cybercriminals frequently rely on a variety of techniques to hide their identities and evade detection by law enforcement, such as by operating out of the dark web or routing their activities through a virtual private network (“VPN”). The increasing use of virtual currencies also contributes to this problem by making it more difficult to trace monetary payments made by victims of cybercrime.

Prosecutions of cyberattacks have been constrained by decades-old statutes that are either inapplicable or insufficient to address rapidly changing social and technological environments that contribute to the proliferation of new cybercrimes. In addition to these challenges, many cybercriminals often reside in or flee to countries that are beyond the jurisdictional reach of the United States. In several widely publicized cases, cyberattacks were also believed to be sponsored by hostile foreign state actors. Unfortunately, many victims of these cybercrime attacks are reluctant to report them, usually due to the fact that while reporting an attack does little to address the harm caused, doing so may draw unwanted publicity or attention. Therefore, if the United States wishes to properly address the rise of cybercrime and its accompanying harm to the global economy, Congress must first pass legislation that would authorize the government to overcome these barriers and increase prosecutorial power over cybercrime.

One proposition that appeared before Congress was to expand the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, codified in 18 U.S.C. §§ 1961–1968. This proposition was included in Section II of the International Cybercrime Prevention Act, which was originally presented in 2018 and was later reintroduced by a bipartisan group in June 2021.7International Cybercrime Prevention Act, S. 2139, 117th Cong. § 2 (2021). After it was referred to the U.S. Senate Committee on the Judiciary, the bill stalled and ultimately failed to pass.8117 Legislative Outlook S. 2139, Lexis+, http://plus.lexis.com/api/permalink/c5af9789-ac9a-4b89-979f-a062c35d96e6 [http://perma.cc/9SEB-ZUV2] (showing the bill’s failure to pass, even in the first committee). The status of the bill reflects the general shortage of political capital when it comes to prioritizing cybercrime despite the FBI’s characterization of “malicious cyber activity” as a threat to “the public’s safety and our national and economic security.”9What We Investigate: Cyber Crime, Fed. Bureau of Investigation, http://www.fbi.gov
/investigate/cyber [http://perma.cc/EL3B-TV9B].

To raise awareness about the threats posed by cybercrimes, this Note will analyze the proposal to expand RICO and, in particular, examine the benefits of making a violation of the Computer Fraud and Abuse Act (“CFAA”) a predicate act for RICO offenses. While a few successful prosecutions of organized cybercrime rings have already been brought under RICO, this Note will evaluate the limitations of those prosecutions when it comes to computer crimes. The Note will conclude that despite the many challenges associated with tackling cybercrime, the constructive application of RICO carries great potential in prosecuting cybercriminals.

Part I of this Note provides the historical context behind RICO and examines its role in the downfall of the American Mafia. It specifically looks at the provisions in RICO that uniquely positioned it for prosecuting organized crime groups as well as legitimate business enterprises that violated state and federal laws. Part II provides an analysis of how RICO applied to traditional organized crime groups and how cybercrime groups can fall under its broad definition of “enterprise.” It also provides further context on the rise of cybercrime and introduces examples of RICO charges that were brought against two cybercrime enterprises. Part III introduces the CFAA and points to key provisions that could be used against cybercrime. It also seeks to address criticisms of the proposal to make violations of the CFAA a predicate act under RICO and evaluates key policy considerations involved in this discussion.

Download

The Illusory Moral Appeal of Living Constitutionalism

Two prominent theories of constitutional interpretation are originalism and living constitutionalism.1amuel Izzo is a graduate of the University of Southern California Gould School of Law, class of 2022, and served as an editor on the Southern California Law Review. He is currently an associate attorney for PARK LLP, a litigation firm based in Los Angeles. One common argument for living constitutionalism over originalism is that living constitutionalism better avoids morally unjustifiable results. This Note will demonstrate that this argument is flawed because living constitutionalism lacks a definitive enough prescriptive claim as to how to interpret the United States Constitution.

Proponents of originalism assert that courts should interpret constitutional provisions in accordance with the public meaning of those provisions at the time of their enactment.2Id. at 1251. Originalist proponent Randy Barnett distinguishes between “old originalism,” which was the idea that the Constitution should be interpreted in accordance with the “intentions of the framers,” and “new originalism,” which is “premised on determining the original public meaning of . . . the Constitution.” Randy E. Barnett, Welcome to the New Originalism: A Comment on Jack Balkin’s Living Originalism, 7 Jerusalem Rev. Legal Stud. 42, 43–45 (2013). For the purposes of this Note, I use “originalism” to mean “new originalism” (that is, public meaning originalism). One criticism of originalism is that if the Supreme Court were to faithfully apply the theory, such application leads morally unjustifiable outcomes.3Cass R. Sunstein, Second-Order Perfectionism, 75 Fordham L. Rev. 2867, 2880 (2007) (noting that a “central objection to originalism is that it would produce morally unacceptable outcomes”). This criticism has two components: (1) had the Supreme Court subscribed to originalism as its interpretive method in the past, then certain outcomes, such as the banning of racial segregation in public schools in Brown v. Board of Education,4Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (finding statutes of several states requiring racial segregation in public schools to be a violation of the Fourteenth Amendment). would not have occurred;5See Ronald Turner, The Problematics of the Brown-is-Originalist Project, 23 J.L. & Pol’y 591, 593 (2015) (stating that “[t]he Brown Court did not employ originalism”); Michael W. McConnell, The Originalist Case for Brown v. Board of Education, 19 Harv. J.L. & Pub. Pol’y 457, 457 (1995) (noting that major constitutional and legal scholars such as “Alexander Bickel, Laurence Tribe, Richard Posner, Mark Tushnet, Raoul Berger, Ronald Dworkin, and Walter Burns” have concluded that Brown is inconsistent with “the original understanding of the Fourteenth Amendment”). Although McConnell concurs that many scholars find the result in Brown incompatible with originalism, he disagrees with such scholars and argues in his article that Brown can be justified under an originalist approach. Id. passim. and (2) if the Supreme Court employs originalism in the future, the Court might issue rulings contrary to contemporary moral sensibilities.6For example, the Court might let stand a state law prescribing flogging or lashing as a form of criminal punishment. See Craig S. Lerner, Justice Scalia’s Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism, 42 Harv. J.L. Pub. Pol’y 91, 112–14 (2019). Moreover, some critics of originalism maintain that when confronted with this problem, proponents of originalism deny that its application would lead to those outcomes and stretch the theory’s meaning beyond its capacity for any meaningful constraint on interpretation,7See Turner, supra note 5, at 596 (arguing that originalism cannot be said to “meaningfully constrain interpreters who are and remain free to fashion and shape the methodology in ways that yield a Brown-is-originalist conclusion”). or, alternatively, they admit that they would find the morally objectionable practice unconstitutional, even if such holding would be inconsistent with the originalist method.8See id. at 627. Thus, the claim is that originalists are “faint-hearted;”9See id. at 626 (quoting Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989)). that is, they either tailor the definition of originalism to conform to morally required decisions or abandon originalism when it is too much to bear.10Michael C. Dorf, Equal Protection Incorporation, 88 Va. L. Rev. 951, 958 (2002) (stating that originalists “concoct implausible accounts of the Reconstruction Era understanding of segregation” to reconcile originalism with Brown). This, critics of originalism assert, indicates that originalism is not viable as a constitutional method and should be abandoned, some argue, in favor of living constitutionalism.11See David A. Strauss, Do We Have a Living Constitution?, 59 Drake L. Rev. 973, 978 (2011) [hereinafter Strauss, Do We Have a Living Constitution?].

This Note will demonstrate the flaws in the above argument. The argument is flawed, not because it can necessarily be proven that originalism leads to more morally justifiable results than living constitutionalism, but because living constitutionalism lacks a definitive prescriptive claim to make such a comparison between the two theories possible. That is, it is impossible to identify past or hypothetical future outcomes of cases as being consistent or inconsistent with living constitutionalism. Moreover, because it is possible to do so with originalism, and thus, posit how implementing originalism could lead to morally undesirable results, living constitutionalism has an illusory moral superiority over originalism.

Download

Respect for Marriage in U.S. Territories

The 2010s were a watershed decade for marriage equality in the United States. In 2013, the Supreme Court in United States v. Windsor struck down section 3 of the so-called Defense of Marriage Act (“DOMA”),1hancellor’s Professor of Law, University of California, Irvine School of Law. The author thanks Anthony Birong, Tony Reese, and Michael Vine for providing comments on earlier drafts. which denied federal recognition to valid state marriages between same-sex couples. The opinion left intact section 2 of DOMA, which “allow[ed] States to refuse to recognize same-sex marriages performed under the laws of other States.”2Id. at 752. Two years after Windsor, the Supreme Court in Obergefell v. Hodges invalidated all state laws against same-sex marriage.3Obergefell v. Hodges, 576 U.S. 644, 680–81 (2015). The opinion effectively invalidated section 2 of DOMA and went one step further: states had to not merely recognize out-of-state same-sex marriages but also had to perform same-sex marriages in state as well. Obergefell brought marriage equality to every state.4Id. But it did not bring marriage equality to every territory. Christopher R. Leslie, The America Without Marriage Equality: Fa’afafine, The Insular Cases, and Marriage Inequality in American Samoa, 122 Colum. L. Rev. 1769, 1771 (2022) [hereinafter Leslie, The America Without Marriage Equality] (noting how American Samoan officials disregarded Obergefell). See infra Part I.

Although Obergefell seemed to guarantee same-sex couples the constitutional right to marry, marriage equality became vulnerable in the summer of 2022. In addition to providing the critical fifth vote to reverse Roe v. Wade in Dobbs v. Jackson Women’s Health Organization,5Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Justice Thomas wrote a concurrence calling for the complete repudiation of substantive due process.6Id. at 2301 (Thomas, J., concurring). Ominously, he wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including . . . Obergefell.”7Id. Justice Thomas asserted that “[b]ecause any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Id. (citation omitted). Justices Breyer, Sotomayor, and Kagan, in dissent, expressed concern that Dobbs would be used to eliminate substantive due process and to reverse Obergefell, see id. at 2331 (Breyer, Sotomayor & Kagan, JJ., dissenting), while the majority opinion’s author, Justice Alito, claimed that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” and that the “rights regarding contraception and same-sex relationships are inherently different from the right to abortion,” id. at 2277–78, 2280 (majority opinion). His assurances, however, provide little solace given his prior dishonesty when adjudicating the constitutional rights of same-sex couples. See Christopher R. Leslie, Dissenting from History: The False Narratives of the Obergefell Dissents, 92 Ind. L.J. 1007, 1021 n.104 (2017) [hereinafter Leslie, Dissenting from History]. See generally Christopher R. Leslie, Justice Alito’s Dissent in Loving v. Virginia, 55 B.C. L. Rev. 1563 (2014) [hereinafter Leslie, Justice Alito’s Dissent in Loving] (criticizing Justice’s Alito’s arguments against marriage equality in Windsor).

Justice Thomas’s concurrence in Dobbs reinvigorated congressional efforts to pass the Respect for Marriage Act (“RFMA”), a statute that would require states to grant full faith and credit to out-of-state marriages regardless of race, gender, ethnicity, or national origin.8Kevin Breuninger, House Passes Same-Sex Marriage Protections in Response to Roe Ruling, with Murky Senate Path Ahead, CNBC (July 19, 2022, 8:07 PM), http://www.cnbc.com/2022/07/19/
house-votes-on-same-sex-marriage-bill-after-supreme-court-roe-ruling.html [http://perma.cc/P63C-NSS9]. The marriage equality movement succeeded when President Biden signed the RFMA into law in December 2022.9Domenico Montanaro, Biden Signs Respect for Marriage Act, Reflecting His and the Country’s Evolution, NPR (Dec. 13, 2022, 4:36 PM), http://www.npr.org/2022/12/13/1142331501/biden-to-sign-respect-for-marriage-act-reflecting-his-and-the-countrys-evolution %5Bhttp://perma.cc/VGG7-7NXT%5D. Despite the recent controversy of Thomas’s Dobbs concurrence, the RFMA was not new legislation; versions of the RFMA had been proposed in Congress for over a decade, before either the Windsor or Obergefell opinions were issued.10See S. 598 (112th): Respect for Marriage Act of 2011, GovTrack, http://www.govtrack
.us/congress/bills/112/s598 [http://perma.cc/F3AY-BEMW]; see also Nancy C. Marcus, Deeply Rooted Principles of Equal Liberty, Not “Argle Bargle”: The Inevitability of Marriage Equality After Windsor, 23 Tul. J.L. & Sexuality 17, 20–21 (2014) (“At the congressional level, the Respect for Marriage Act, repealing DOMA in its entirety, was reintroduced on June 26, 2013, with 161 Sponsors in the House of Representatives and 41 sponsors in the Senate.”). The RFMA did not simply codify Obergefell, as the Act does not invalidate any state’s prohibition on licensing same-sex marriage within its own borders. Instead, the RFMA effectively repealed section 2 of DOMA and affirmatively requires states to recognize same-sex marriages legally performed in other states.11Respect for Marriage Act, Pub. L. No. 117–228, 136 Stat. 2305 (2022) (“No person acting under color of State law may deny . . . full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals . . . .”). The RFMA is not limited to recognition of same-sex marriage. The statute also prohibits states from refusing to recognize interracial marriages performed in other states. The Supreme Court in Loving v. Virginia struck down anti-miscegenation laws. Loving, unlike Obergefell, is not currently under assault. Ironically, however, opponents of same-sex marriage consistently recycle the precise arguments used in the 1950s and 1960s against interracial marriage, yet they currently only attack the former. Leslie, Justice Alito’s Dissent in Loving, supra note 7, at 1569–1608. For example, while repeatedly attacking same-sex marriages, Justice Thomas never condemns interracial marriages, perhaps because he is in one.

Opponents of the RFMA argued that the legislation was unnecessary because Obergefell already protects marriage equality.12Julia Mueller, Baldwin Pushes Back on GOP Arguments Against Same-Sex Marriage Legislation, Hill (Sept. 12, 2022, 12:00 PM), http://www.thehill.com/homenews/senate/3638918-baldwin-pushes-back-on-gop-arguments-against-same-sex-marriage-legislation [http://perma.cc/R45J-U42C] (“Some Republicans have said the Respect for Marriage Act, which would make marriage a constitutional right regardless of a couple’s sex, race, ethnicity or national origin, is moot because the U.S. Supreme Court has already protected marriage equality.”). They seem unimpressed with Justice Thomas’s shot across the bow in Dobbs.13Brooke Migdon & Al Weaver, Florida Students Protest Sasse Appointment over LGBTQ Issues, Hill (Oct. 10, 2022, 4:10 PM), http://www.thehill.com/homenews/senate/3681727-florida-students-protest-sasse-appointment-over-lgbtq-issues [http://perma.cc/W2TJ-2QQ3] (“Momentum for the Respect for Marriage Act increased after Thomas issued his concurrent opinion, but [Senator Ben] Sasse told reporters in July that it was unnecessary, accusing Democrats of voting in favor of the bill to further divide Americans.”). For example, one month after Justice Thomas announced his intention to reconsider and perhaps reverse Obergefell, Senator Marco Rubio belittled the RFMA as a “stupid waste of time.”14Julia Mueller, Baldwin Says She Confronted Rubio After He Called Vote to Codify Same-Sex Marriage a ‘Stupid Waste of Time,’ Hill (July 22, 2022, 11:33 AM), http://www.thehill.com/homenews
/senate/3570443-baldwin-says-she-confronted-rubio-after-he-called-vote-to-codify-same-sex-marriage-a-stupid-waste-of-time [http://perma.cc/53MQ-RFDZ]. Iowa Senator Chuck Grassley voted against the RFMA, asserting that the “legislation is simply unnecessary. No one seriously thinks Obergefell is going to be overturned so we don’t need legislation.”15Valeree Dunn, Grassley Calls Respect for Marriage Act “Unnecessary,” and a “Threat to Religious Liberty,” (Nov. 16, 2022) (typeface convention added), http://www.msn.com/en-us/news
/politics/grassley-calls-respect-for-marriage-act-unnecessary-and-a-threat-to-religious-liberty/ar-AA14
cnfA [http://perma.cc/66KC-28KY]. He implied that RFMA supporters were seeking “to fabricate unnecessary discontent in our nation.”16Id.

The argument that the RFMA was unnecessary because marriage equality was already the law of the land failed to appreciate how constitutional law reaches the shores of U.S. territories. Even if Justice Thomas fails in his mission to overturn Obergefell, the RFMA is still essential now to bring the protections of Obergefell to all corners of the American empire. Before the RFMA, the U.S. territory of American Samoa refused to follow Obergefell and continued to restrict marriage licenses to opposite-sex couples.17Leslie, The America Without Marriage Equality, supra note 4, at 1771. Various states and localities have historically provided differing degrees of protection for LGBT+ rights. Christopher R. Leslie, The Geography of Equal Protection, 101 Minn. L. Rev. 1579, 1616–24 (2017) (noting that historically some states and cities are more protective of LGBT+ rights than others). American Samoa is unique, however, in singularly rejecting the holding of Obergefell.

While Obergefell instantly brought marriage equality to every state, the path toward marriage rights has been more complicated in U.S. territories: American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (“CNMI”), the U.S. Virgin Islands (“USVI”), and Puerto Rico.

Acquired primarily from colonial powers by purchase or as the spoils of war, U.S. territories hold a precarious position in our constitutional structure. Beginning in 1901, the Supreme Court issued a series of opinions known as the Insular Cases.18Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law 79–80 (2009). This line of authority prevented constitutional rights from automatically protecting territorial residents. Instead, the Court held that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.”19Downes v. Bidwell, 182 U.S. 244, 279 (1901). In the absence of congressional directive, the Insular rubric provides that federal courts can hold that a constitutional right applies to one or more territories when the court determines that the right is “fundamental” and that recognizing the right would not be “impracticable and anomalous” for that territory.20Leslie, The America Without Marriage Equality, supra note 4, at 1773; Fitisemanu v. United States, 1 F.4th 862, 878–79 (10th Cir. 2021). Under this test, for example, the district court in King v. Andrus21King v. Andrus, 452 F. Supp. 11 (D.D.C. 1977).struck down rules denying jury trials in criminal cases in American Samoa, finding that it would not be impractical and anomalous to require American Samoa to provide jury trials to criminal defendants, given the structure of the American Samoan judicial system.22See id. at 17.

Conversely, in rejecting calls to provide birthright citizenship to individuals born in American Samoa,23American Samoans did not have a right to birthright citizenship. Fitisemanu, 1 F.4th at 865. American Samoans are U.S. nationals, not U.S. citizens, and thus do not have the right to vote or run in federal or state elections outside American Samoa or the right to serve on federal and state juries. Id. The Court of Appeals for the D.C. Circuit in 2015 in Tuaua v. United States held that it would be “anomalous to impose citizenship over the objections of the American Samoan people themselves”24Tuaua v. United States, 788 F.3d 300, 310 (D.C. Cir. 2015). and federal judges should not “forcibly impose a compact of citizenship—with its concomitant rights, obligations, and implications for cultural identity.”25Id. at 311. In 2021, the Tenth Circuit in Fitisemanu v. United States followed suit and used the Insular framework to block birthright citizenship for American Samoans.26Fitisemanu, 1 F.4th at 864–65.

The Fitisemanu plaintiffs petitioned the Supreme Court for certiorari.27Fitisemanu v. United States, 143 S. Ct. 362 (2022). Some commentators saw the case as the perfect vehicle for challenging the Insular Cases.28James T. Campbell, Aurelius’s Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and “The Law of the Territories,” 131 Yale L.J. 2542, 2607 (2022) (noting “the efforts to market Fitisemanu as a vehicle for overturning the Insular Cases”). The hope was not far-fetched. Respected scholars advocate the reversal of the Insular Cases.29See, e.g., Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L.J. 2449 (2022). Significantly, in his concurrence in United States v. Vaello Madero in April 2022,30United States v. Vaello-Madero, 142 S. Ct. 1539 (2022). Justice Gorsuch observed the following:

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.31Id. at 1552 (Gorsuch, J., concurring) (typeface convention added).

On October 17, 2022, however, the Supreme Court denied certiorari in Fitisemanu,32Fitisemanu, 143 S. Ct. at 362. thus leaving the Insular Cases intact. While not obvious at first glance, that decision has implications for marriage equality in U.S. territories.

This Article proceeds in three parts. Part I examines how the governments of the five U.S. territories responded to the Obergefell decision. Because of the Insular Cases, Obergefell did not necessarily automatically apply to the territories. Of the most concern, the territorial government of American Samoa has refused to recognize either Obergefell or marriage equality. Part II explains how the RFMA provides a partial solution to the problem created by the Insular Cases. It discusses the unappreciated significance of the RFMA for residents of U.S. territories. The RFMA brings a form of marriage equality to American Samoa for the first time. Less historic, but also important, the RFMA would ensure the continuation of marriage equality in those U.S. territories where the right to same-sex marriage is currently recognized but uniquely vulnerable because of the Insular Cases. Part III exposes some of the limitations of the RFMA. For example, the RFMA requires that states and territories provide full faith and credit to marriages legally performed in other states and territories; same-sex couples still cannot get legally married in American Samoa. They must leave home to get married, a burden not imposed on opposite-sex couples.

Download

Cost-Benefit Analysis Without the Benefits or the Analysis: How Not to Draft Merger Guidelines

Previous iterations of the DOJ/FTC Merger Guidelines have articulated a clear, rigorous, and transparent methodology for balancing the procompetitive benefits of mergers against their anticompetitive costs. By describing agency practice, clear guidelines deter anticompetitive mergers while encouraging procompetitive ones, ensure consistent and reasonable enforcement, increase public understanding and confidence, and promote international cooperation.

But the 2023 Draft Merger Guidelines do not. They go to great lengths to articulate the potential anticompetitive costs of mergers but with no way to gauge “substantiality.” Most significantly, they ignore potential benefits of mergers, which eliminates the need for balancing. In other words, the Draft Guidelines provide very little guidance about current practice, which increases enforcement risk and thus deters mergers, which may be the point of the Draft Guidelines. In this Article, we offer specific recommendations that do a better job differentiating pro- from anticompetitive horizontal, vertical, and tech mergers.

Download

Chinese State Capitalism and the Holding Foreign Companies Accountable Act

In an age of unicorns that “[m]ove fast and break things,”1obert J. Watkins/Proctor & Gamble Professor of Law, The Ohio State University. Chinese startup Luckin Coffee Inc. (“Luckin Coffee” or “Luckin”) moved at exceptional speed. Founded in October 2017, the Chinese Starbucks-equivalent2Qingxiu Bu, The Anatomy of Holding Foreign Companies Accountable Act (HFCAA): A Panacea or a Double-Edge Sword?, 16 Cap. Mkts. L.J. 503, 505 (2021). grew from a single Beijing location to nearly 4,400 self-operated stores, over 1,600 partnership stores, and about 1,100 Luckin Coffee “EXPRESS” machines in over 220 cities in China by the end of 2021.3Luckin Coffee Inc., Annual Report (Form 20-F) 9 (Apr. 14, 2022). Yet while the company was achieving tremendous growth—quickly overtaking Starbucks as the leading coffee chain in China—company management attempted to make the company appear even more successful through a series of fraudulent financial statements. Among other things, company executives created a “fake operations database,” altered bank records, and engaged in sham sales designed to create the appearance of faster growth, while simultaneously hiding their misconduct from regulators and their own finance department.4Complaint at 2, Sec. & Exch. Comm’n v. Luckin Coffee, Inc., No. 1:20-cv-10631 (S.D.N.Y. Dec. 16, 2020). The company overstated its revenues by 27% in the second quarter of 2019, and by 45% in the third quarter of 2019, while also understating its net losses for those quarters by 15% and 34%, respectively.5Id. at 2.

Luckin provided these false statements in earnings calls with investors and in filings with the U.S. Securities and Exchange Commission (“SEC”), including offering documents for its 2020 initial public offering of $418 million in stock and its convertible bond issuance of $446.7 million.6Id. at 1. However, some investors were suspicious, and a “cryptic email” sent to numerous short sellers in January, 2020, warned that a “new generation of Chinese Fraud 2.0 has emerged,” with “[c]ompanies that start off as fundamentally and structurally flawed business model [sic] that evolves into fraud.”7Jing Yang, Juliet Chung & Julie Steinberg, Coffee’s for Closers: How a Short Seller’s Warning Helped Take Down Luckin Coffee, Wall St. J. (June 29, 2020, 5:30 AM), http://www.wsj.com/articles
/coffees-for-closers-how-a-short-sellers-warning-helped-take-down-luckin-coffee-11593423002 [http://perma.cc/EWW5-HJEK]. The email offered to share customer receipts and videos from Luckin locations, and included an eighty-nine-page report about the company that the anonymous sender suggested could be published under the name of one of the short sellers. Carson Block, an investor and founder of Muddy Waters LLC, posted the report on Twitter on January 31, 2020.8Id.

The stock price hardly moved after the posting, with much of the information in the report seemingly having already been impounded into the market price before it was broadly disseminated. But the stock took a tumble several weeks later as new information emerged and the full extent of the scandal began to take shape. Among other things, investigations later revealed that Luckin executives engaged in conflicted transactions, such as the sale of vouchers for tens of millions of cups of coffee to companies tied to Luckin’s controlling shareholder and chairman, Charles Lu.9Jing Yang, Behind the Fall of China’s Luckin Coffee: A Network of Fake Buyers and a Fictitious Employee, Wall St. J. (May 28, 2020, 12;12 PM), http://www.wsj.com/articles/behind-the-fall-of-chinas-luckin-coffee-a-network-of-fake-buyers-and-a-fictitious-employee-11590682336 [http://perma.cc/Q32D-9NT3].

Luckin Coffee’s fraud was a large but not unusual kind of corporate scandal. Similar (and even larger) accounting scandals contributed to the bursting of the Dot-Com Bubble in 2000, including frauds at HealthSouth, Tyco, WorldCom, and Enron. As a result of these scandals, Congress passed the Sarbanes-Oxley Act of 2002,10Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, 116 Stat. 745. which imposed a series of measures designed to ensure that corporate financial statements are accurate and fairly present the financial position of the company. Part of these regulations included the creation of a new quasi-governmental regulator, the Public Company Accounting Oversight Board (“PCAOB”),11Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, § 101, 116 Stat. 745, 750–753. which was designed to scrutinize the auditors who themselves scrutinize the financial statements of public companies. For the PCAOB to properly perform its work in protecting against accounting frauds, it must have access to the information that the auditors used to perform their audits.

The PCAOB’s access requirement brings the PCAOB in conflict with recently enacted Chinese law and policy, which not only limits what Chinese companies can share with external parties but also formally prohibits their cooperation with the PCAOB.12See infra Part II. In response to China upping the ante in a high-stakes game of sovereignty over financial regulation, the United States recently played its strongest hand: the SEC, at the direction of Congress, blacklisted Chinese companies listed on U.S. securities exchanges, threatening them with expulsion from U.S. securities markets unless the Chinese government allows access to the PCAOB. The blacklisting regulation, promulgated under the Holding Foreign Companies Accountable Act (“HFCAA” or “the Act”), includes not only suspect companies like Luckin Coffee but also any company headquartered in China and operating under Chinese law. Further, preventing accounting fraud is only part of the purpose of the HFCAA, and a fulsome understanding of the Act requires consideration of the political, economic, and regulatory context from which the Act emerged.

The HFCAA gambit seems to have been successful, as Chinese regulators recently agreed to allow PCAOB officials review audit records in Hong Kong—though some practitioners are skeptical that the agreement reached between Chinese and U.S. regulators will ultimately hold.13Jessica Seah, Lawyers Skeptical That US-China Audit Agreement Will Succeed, Am. Law. (August 30, 2022, 5:24 PM), http://www.law.com/international-edition/2022/08/30/lawyers-skeptical-that-us-china-audit-agreement-will-succeed [http://perma.cc/MEB3-275U]. Much is at stake because, while the HFCAA helps protect investors against accounting frauds of the type Luckin is alleged to have committed, the effects of the Act are subtler and more far-reaching, and the Act’s purpose in blacklisting foreign companies is as much (if not more) about foreign policy as it is about investor protection.

This Essay examines market blacklisting—a term the Essay uses to describe extraordinary government restrictions that limit a corporation’s ability to trade freely in U.S. markets—as a regulatory tool used to deny the benefits of U.S. markets to Chinese firms. Analyzing and recharacterizing the recently enacted HFCAA as a foreign-policy-oriented regulation, this Essay argues that jarring and serious accounting frauds such as Luckin’s are not the most important—or even primary—target of the Act. While capital markets blacklisting operates in opposition to the traditionally open posture of U.S. financial markets, blacklisting can also serve to achieve strategic foreign policy goals. In particular, the passage of the HFCAA demonstrates that, in response to recent Chinese investment activity, the United States increasingly considers its financial markets as a rivalrous national resource and is becoming less willing to share that resource with its greatest economic competitor.

Download

The Double Jeopardy Clause and Successive Prosecutions by Separate Sovereigns for the Same Act

Under the so-called dual sovereignty doctrine (“DSD”), the Fifth Amendment’s Double Jeopardy Clause (“DJC”) is not implicated by successive prosecutions brought by separate sovereigns against the same defendant for the same act. For example, if a defendant is prosecuted first by the federal government for a certain crime, that defendant’s right not “to be twice put in jeopardy of life or limb”1ullen Professor, University of Houston Law Center. I am grateful to the following for their comments, suggestions, questions, and criticisms: Lincoln Dow, Meredith Duncan, Lonny Hoffman, and Teddy Rave, as well as the students in my Fall 2022 course on the Supreme Court. I also benefitted from superb research assistance provided by Austin Falcon, Jared Peloquin, Zeshan Mohiuddin, and lawyers in the Houston office of Latham & Watkins. Amanda Watson and her terrific library staff provided invaluable support. Finally, I appreciate the backing of Dean Leonard Baynes and Associate Dean Greg Vetter, and financial support from the University of Houston Law Foundation. for the same offence does not protect him against a subsequent prosecution by a state government for a crime involving the same conduct. As the Court put it in the recent case of Gamble v. United States,2Gamble v. United States, 139 S. Ct. 1960 (2019). Throughout this Article, I refer to criminal defendants using the masculine pronoun, principally because nearly 90% of federal criminal defendants (and more than 90% of inmates in federal custody) are male, and it would therefore be precious to use nongendered pronouns. See Mark Motivans, U.S. Dep’t of Just., Federal Justice Statistics, 2019, at 8, 16 (2021), https://bjs.ojp.gov/content/pub/pdf/fjs19.pdf [https://perma.cc/Q24S-4MN2]. “a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”3Gamble, 139 S. Ct. at 1964.

I argue in this Article that this DSD errs in two respects, one of which has drawn a bit of attention, and one of which has gone entirely unnoticed in the cases and academic literature. First, as suggested by Justices Ginsburg and Gorsuch in their separate Gamble dissents,4See id. at 1989–91 (Ginsburg, J., dissenting); id. at 1996–99 (Gorsuch, J., dissenting). Until Gamble, Justice Thomas had been similarly skeptical of the originalist justification for the dual sovereignty doctrine (“DSD”), but he changed his mind. Compare Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (Ginsburg, J., joined by Thomas, J., concurring), with Gamble, 139 S. Ct. at 1980 (Thomas, J., concurring). and as I elaborate, the DSD rests on a mistaken originalist view of how successive prosecutions by separate sovereigns were regarded at common law; consequently, the inference as to how the eighteenth-century English doctrine applies to the United States, which rests on a concept of divided sovereignty alien to the common law, is fundamentally flawed.5I am not the first academic to comment on this misreading of historical record. Indeed, the Double Jeopardy Clause (“DJC”) literature pertaining specifically to the historical meaning of the provision is exhaustive; sources I have found especially illuminating include the following: Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 2–4 (1969); George C. Thomas III, Double Jeopardy: The History, The Law 46–86 (1998). Scholarship that attacks the DSD in particular began to develop following the initial appearance of the doctrine itself. Again, the literature is substantial; and again, arguments I have found particularly compelling include the following: J.A.C. Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309 (1932); Walter T. Fisher, Double Jeopardy, Two Sovereignties and the Intruding Constitution, 28 U. Chi. L. Rev. 591 (1961); Lawrence Newman, Double Jeopardy and the Problem of Successive Prosecution: A Suggested Solution, 34 S. Cal. L. Rev. 252 (1961); George C. Pontikes, Dual Sovereignty and Double Jeopardy: A Critique of Bartkus v. Illinois and Abbate v. United States, 14 W. Rsrv. L. Rev. 700 (1963). For perhaps the most trenchant critique, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev. 693 (1994). For an unusually perspicuous analysis of the common law, see Donald Eric Burton, Note, A Closer Look at the Supreme Court and the Double Jeopardy Clause, 49 Ohio St. L.J. 799, 801 (1988); see also Michael Kline, Note, Wading in the Sargasso Sea: The Double Jeopardy Clause, Non-Capital Sentencing Proceedings, and California’s “Three Strikes” Law Collide in Monge v. California, 27 Pepp. L. Rev. 861, 863–65 (2000); infra note 23.

Second, the current and longstanding view of the DJC assesses whether that Clause is implicated by focusing on whether the same offense (or conduct) forms the basis for successive prosecutions by separate sovereigns. I offer an entirely different methodology that does not depend (as does this orthodox view) on an unsound originalist analysis.6See infra text accompanying notes 32–38 in Part III. Moreover, the approach I offer in this Article to the DSD/DJC analysis would remain superior to the existing jurisprudence even if the originalist argument for the DSD were historically sound. A nonoriginalist could therefore embrace my elements-based approach regardless of the historical critique. I nevertheless stress the weakness of the originalist argument primarily in order to clear the field of what is essentially a red herring and to obtain potential buy-in from committed originalists. Finally, although, as I say, I am not aware of any court or academic who has proposed the approach to double jeopardy I develop here, an interesting student note examined a related issue: namely, whether a criminal defendant who is subsequently sued for civil damages can invoke (or should be able to invoke) preclusion in the civil proceeding. See Wystan M. Ackerman, Note, Precluding Defendants from Relitigating Sentencing Findings in Subsequent Civil Suits, 101 Colum. L. Rev. 128, 128–30 (2001). Rather than focusing on what a defendant did or how a sovereign has defined an offense, the better approach to determining whether successive prosecutions by separate sovereigns violate the DJC is to focus on what the jury found. The methodology I propose hones in on the elements of the crime with which a criminal defendant is charged in the initial prosecution because the outcome of that trial will turn on the factfinder’s evaluation of those elements. To my knowledge, nobody has previously proposed this approach to analyzing double jeopardy challenges to successive prosecutions brought by separate sovereigns.

My starting point is the Supreme Court’s recent decision in Gamble, which I summarize in Part I. Next, in Part II, I identify what I refer to as the twin errors that animate the Gamble holding, one entirely historical, and the other primarily analytical. In Part III, I propose a new methodology for examining whether successive prosecutions violate the DJC; I refer to this methodology as an “elements-based approach.” In Part IV, I compare the analytical method outlined in Part III with Gamble itself and illustrate how Gamble would have been decided using an elements-based approach. In Part V, I turn to the principles of issue preclusion and full faith and credit and argue that an elements-based approach to double jeopardy analysis is symmetrical to a similar inquiry in the civil domain. Finally, I conclude by pointing to the DJC-DSD cases the courts have adjudicated over the past two decades, and I ask how consequential the modification I sketch would be on criminal defendants.

Download