Volume and Issue: Vol. 95, 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.

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.

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Frederick Douglass and the Hidden Power of Recording Deeds

This Essay answers a single question: What led Frederick Douglass to accept an appointment as the D.C. Recorder of Deeds, especially at the height of his public service career? A possible answer, which is informed by the historical record and more contemporary accounts, is that Douglass accepted such an appointment for three reasons. The first reason is that the D.C. Recorder has been long recognized as an exemplar of fairness, perhaps due to its ministerial obligations, even when there could be no such expectation with respect to how Black folks are treated. The second reason is this office provided Douglass with a relatively safe position, in economic and political terms, that he used to call for more standard treatment of Black people by various governmental units such as the U.S. Supreme Court. The final reason is the D.C. Recorder collects public information, in the normal course of its business, which validates Douglass’s call for more standard treatment.

These three reasons, if they are read as a whole, refer to what the Essay is the first to call the hidden power of recording deeds. This power is made up of unnoticed benefits, largely arising from governmental policies informed by procedural fairness, which help to limit racial discrimination. Procedural fairness, by definition, is when U.S. governments refuse to treat similarly situated people in nonstandard ways without adequate justification. One reason for such a refusal to do so is that governments may have ministerial obligations, which limit their ability to exercise any discretion.

The D.C. Recorder has ministerial obligations which were intended to increase economic efficiency rather than to advance racial equality, such as the duty to register property interests upon the satisfaction of certain conditions precedent, but nonetheless ensure that Black people are treated just like everybody else. This office also does work that highlights the implications of failing to ensure standardization, which include unjustified economic losses that stem from adverse selection and other asymmetric information issues. Lastly, the D.C. Recorder shows that any such losses are not solely imposed upon Black folks, especially as many neighborhoods have become increasingly integrated, so harms are not limited to property owners in majority-Black areas. Stated simply, this hidden power is a less-than-salient way to remove “unfreedoms that leave [Black] people with . . . little opportunity of exercising their reasoned agency” even when they suffer from chronic property right violations such as trespasses to land or nuisances.

Part I provides additional information about Frederick Douglass and how he may have understood the various powers that are exercised by the D.C. Recorder of Deeds. Part II explains how to build upon Douglass’s legacy as the first Black D.C. Recorder, especially his call for more standardized treatment, mostly by explaining how this office could make better use of public information that it has in its possession. The Conclusion offers specific suggestions for how to achieve this goal, so as to prevent purchase price discrimination, lien fraud, and deed fraud.

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Tracing the Diverse History of Corporate Residual Claimants

Postscript | Corporate Law
Tracing the Diverse History of Corporate Residual Claimants
by Sung Eun (“Summer”) Kim*

Vol. 95, Postscript (Jan 2022)
95 S. Cal. L. Rev. Postscript 43 (2022)

Keywords: Corporate Law, Residual Rights

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The conventional understanding in corporate law is that shareholders are the residual claimants of corporations because they own the residual right to profits. Based on this understanding, shareholders are entitled to a host of corporate law rights and protections—including the right to vote and fiduciary duty protections. However, a review of the origin and history of residual claimant theory shows that the theory originally envisaged a broad conception of the residual claim that goes beyond profits, leading to a diverse array of stakeholders being the residual claimants of corporations over time. Depending on which of the theories of rent, interest, wages, or profit was adopted, each of the landlord, capitalist, laborer, and entrepreneur has been considered the residual claimant of the corporation. This history shows that the prevailing view of shareholders as the exclusive residual claimants of the corporation is a relatively recent understanding and that the historical record supports a more diverse conception of the residual claimant. In that sense, residual claimant analysis is better understood as a theory for the stakeholder model of the firm than the shareholder primacy model, as it is presently understood.

* Professor of Law, University of California, Irvine School of Law. I am grateful to Mehrsa Baradaran, Joshua Blank, Jill Fisch, Vic Fleischer, Jonathan Glater, Alex Lee, Jennifer Koh Lee, Stephen Lee, Christopher Leslie, Omri Marian, L. Song Richardson, and Arden Rowell for reading prior versions of this Article and providing helpful comments. I also benefitted from the opportunity to present and receive feedback on this project at the Trans-Pacific Business Law Dialogue (September 2020) and the University of Florida Business Law Conference (November 2020). Tianmei Ann Huang and Nick Nikols provided extraordinary research assistance, and Vivian Liu, Mindy Vo, Elizabeth Bell, and Jessica Block of the Southern California Law Review Postscript team, Deborah Choi, and Matthew Perez provided superb editorial assistance. Any errors are my own.

Trademark’s “Ship of Theseus” Problem

Postscript | Intellectual Property Law
Trademark’s “Ship of Theseus” Problem
by Matthew T. Bodie*

Vol. 95, Postscript (Nov 2021)
95 S. Cal. L. Rev. Postscript 27 (2021)

Keywords: Intellectual Property Law, Trademark

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The “Ship of Theseus” is a classic philosophical problem posed about the continuity of identity. In Plutarch’s telling, the ancient Athenians preserved for posterity the famous ship piloted by Theseus after the slaying of the Minotaur.1 Once a year, a delegation would travel on the ship to the island of Delos with a tribute to the god Apollo.2 Over time, the wood began to rot, and the decaying planks were replaced with new ones. The ship became “a standing example among the philosophers, for the logical question of things that grow: one side holding that the ship remained the same, and the other contending that it was not the same.”3 The conundrum was recently referenced in the Marvel Comics Universe, as two versions of the organic android Vision puzzled over their identities in the climax of WandaVision.4 A wrinkle was added: what if the boards from the original ship were saved and used to recreate a version of the ship? Would that also be the ship of Theseus?

Trademark has long had a problem with identity. The purpose of trademark is to identify the source of goods or services and thereby make life easier for consumers. But trademark does not make an effort to ensure that the company that holds the mark still reflects the entity that developed the mark’s identity. Rather, trademark has turned largely into an alienable property right, unmoored from its created context.5 The law has severed the connection between the mark and the entity beyond the formalities of organization law, with the result that whoever controls the mark’s owner controls the mark. As a result, new owners can take advantage of reputation capital they never earned, and those with a true connection to the success of the original business can be shut out.6

This Essay argues against the law’s presumption that the corporate entity should have exclusive control over the mark, no matter the continuing connection (or lack thereof) that the entity has with the original business and goodwill. Trademark should instead reflect the potential that the identity will change over time, changing the meaning of the trademark along with it. Rather than blindly empowering individual corporations, trademark law should either pay closer attention to identity issues or allow a wider variety of participants to use the mark in various ways. Either of these approaches to trademark would be messier but would reflect more accurately our complicated reality.

* Callis Family Professor, Saint Louis University School of Law. This Essay is based in part on an ongoing research project presented at the Intellectual Property Scholars Conference and the biannual meeting of the Labour Law Research Network; I very much appreciate comments from Erika Cohn, Mark Lemley, Laura Heymann, Yvette Liebesman, Jake Linford, and Mark McKenna. Thanks to Danielle Dur- ban for excellent research assistance.

A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic

Postscript | Government
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemic
by Itay Ravid*, Jordan M. Hyatt†, and Steven L. Chanenson‡

Vol. 95, Postscript (September 2021)
95 S. Cal. L. Rev. Postscript 1 (2021)

Keywords: Criminal Law, Public Health, Government

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Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution plans that, broadly speaking, deprioritized incarcerated populations and in some cases correctional staff as well. While vaccinations are now much more widespread, things were dramatically different not too long ago. The first goal of this Essay is to ensure we memorialize how society, once again, failed to protect our incarcerated communities when they needed it the most. To illustrate this, we offer a data-driven analysis of the early state-level policies regarding vaccinations of people who live and work in prisons. Our findings show that vaccination policies tended to systematically ignore or disadvantage incarcerated individuals. We argue that by adopting such policies, states have neglected to comply with their legal obligations, grounded in existing and emerging Eighth Amendment jurisprudence and long-standing ethical responsibilities to proactively vaccinate this population. This is particularly true given that prisons are among the high-risk “congregate settings” that are widely recognized by health experts, and often by the states themselves, as deserving of immediate distribution of vaccines. Based on these obligations, and given recent new virus outbreaks and the realization that some form of COVID-19 is here to stay (and other pandemics may be around the corner), this Essay concludes with recommendations for the future.

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*. Assistant Professor of Law, Villanova University Charles Widger School of Law.
†. Associate Professor of Criminology and Justice Studies, Director, Center for Public Policy,

Drexel University.
‡. Professor of Law, Villanova University Charles Widger School of Law. The authors would

like to thank Kristi Arty and Michael Slights for their terrific research assistance, and the SCLR editorial team for their careful and diligent work. Research for this Article was conducted with support provided to Dr. Hyatt (Drexel University) by Arnold Ventures. The views expressed in this Article are those of the authors and do not necessarily reflect those of the funder or any of the authors’ respective academic institutions.