Yearly Archives: 2019

Ilana Gomez, CLS ’21

The legacy of the 1985 class-action lawsuit, Flores v. Reno, promulgated the Flores Settlement Agreement (“Flores Settlement”) and began a nationwide conversation on the ethical standards of processing undocumented minors separated from their parents and families. The agreement, which has proved a contentious crux for Trump’s zero-tolerance policy, essentially ordered the government to detain children in the “least restrictive” settings, create and implement appropriate standards of care of detained children, and release children “without unnecessary delay” to specific individuals listed in the agreement.

Many U.S. detention centers have failed to meet the Flores standards, and some have allegedly provided psychotropic medication without appropriate authorization.[1] In 2018, the Center of Human Rights and Constitutional Law (CHRCL) filed a class action lawsuit, Flores v. Sessions, against a Texas facility in Manvel, Texas, alleging that the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) unlawfully administered  psychotropic drugs to detained children without appropriate consent.[2] On one occasion, ORR staff threw a child to the ground and forcibly opened his mouth, while another complaint detailed coercive practices where children were threatened to take medication.[3] Such threats included telling the children that the only way they could leave the center was if they took the medication.[4] This treatment violates the Flores Settlement’s requirement where ORR facilities must “comply with all applicable state child welfare laws and regulations,” and only provide children with “appropriate mental health interventions when necessary.”[5]

In July 2018, U.S. District Judge Dolly Gee ordered in Flores v. Sessions, that Texas state child welfare laws and regulations govern the administration of any psychotropic medication to children at the Texas detention center in question.[6] Therefore, legally authorized persons defined in the Texas Administrative Code, Texas Family Code, or a court, must disclose any administration of psychotropic medication to detained children. In an emergency situation, however, the detention center could administer medication if it is immediately necessary to provide medical care in order to prevent the imminent probability of death or substantial bodily harm to the child or others.[7]

This recent decision, while a step in the right direction, might be insufficient for the protection of detained children’s consent rights considering the varying state child welfare laws and regulations defining informed consent. In Arizona, for example, an ORR Director or a licensed physician can medically authorize psychotropic medication to detained children.[8] The ORR also has a policy that if a state law requires informed consent from a parent – and it is not possible or timely to retrieve it due to the inability to locate the parent – then the ORR may direct a facility to seek a court order authorizing the medication.[9] It is clear that child welfare laws were drafted without undocumented and parentless children in mind, and therefore appropriate policy specific to the needs of migrant families separated at the border is both necessary and urgent.

[1] Scott J. Schweikart, April 2018 Flores Settlement Suit Challenges Unlawful Administration of Psychotropic Medication to Immigrant Children, 21 AMA Journal of Ethics 67, 67-68 (2018).

[2] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 20-21 (C.D. Cal. Nov. 5, 2018).

[3] Samantha Schmidt, S. Trump Administration Must Stop Giving Psychotropic Drugs to Migrant Children Without Consent, Judge Rules, Washington Post (July 31, 2018) https://www.washingtonpost.com/news/morning-mix/wp/2018/07/31/trump-administration-must-seek-consent-before-giving-drugs-to-migrant-children-judge-rules/

[4] Id.

[5] U.S. Department of Health & Human Services, Office of Refugee Resettlement, Children Entering the United States Unaccompanied: Section 3. (2015)

[6] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 23-24 (C.D. Cal. Nov. 5, 2018).

[7] Id. at 23.

[8] U.S. Department of Health and Human Services, Office of Inspector General,

Care Provider Facilities Described Challenges Addressing Mental Health Needs of Children in HHS Custody (2019).

[9] Id.

Valerie Achille, CLS ’21

On September 30, 2018, then-Governor of California Jerry Brown signed into law SB 826,  making California the first state to mandate the inclusion of female directors on corporate boards.^[1] By the end of 2019, all publicly traded companies must have a minimum of one female director on their board.^[2] By 2021, boards with five directors must have at least two female directors and boards with six directors must have at least three female directors.^[3] Corporations that fail to comply with the new requirements can be fined $100,000 for a first-time violation and then $300,000 for subsequent violations.^[4]

The purpose of SB 826 is to increase the number of female directors in order to produce equitable gender representation in corporate boards. At the time the bill was introduced, women held only fifteen percent of board seats.^[5] Moreover, a quarter of California’s publicly traded companies did not have any women at all on their boards.^[6]

There have been concerns about the constitutionality of SB 826. On August 6, 2019, Judicial Watch, a conservative activist group, filed a lawsuit in Los Angeles County Superior Court challenging the new law.^[7] In its complaint, Judicial Watch argues that SB 826  is unconstitutional under the California Constitution because it creates a quota system.^[8] Since there is a specific number of women that must be on the board, the plaintiffs argue that the law effectively makes boards discriminate against qualified male candidates. For example, if two qualified candidates (one male and one female) apply and the board has not met its requirement for female directors, the board would be required to choose the female candidate solely based on her gender.^[9]

With this constitutional challenge on the horizon, proponents of SB 826 must overcome an additional obstacle. The California Assembly Committee on Judiciary determined that in order to defend the constitutionality of this bill, the defenders of the bill would need to show specific evidence of discriminatory behavior; citing statistics that women are grossly underrepresented on corporate boards alone would not be sufficient.^[10]

The short-term effects of SB 826 demonstrate that the law merits preservation. The new law has led to real change in the demographics of company boards. As of July 2019, all S&P 500 companies have at least one female director on their board of directors.^[11] The number of Russell 3000 companies with all-male boards has decreased from 500 to 376 companies.^[12]

Despite its good intentions and good results, SB 826 may not be able to withstand these constitutional challenges. The new law reveals the difficulty for states to make significant impact in gender representation while remaining within the parameters of the Constitution.

^[1] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018) www.latimes.com/politics/la-pol-ca-governor-women-corporate-boards-20180930-story.html.

^[2] Associated Press. Lawsuit Challenges California Law Requiring Women on Boards A Conservative Activist Group Is Challenging California’s First-in-the-Nation Law Requiring Publicly Held Companies to Put Women on Their Boards of Directors. US NEWS, (Aug. 9, 2019) www.usnews.com/news/best-states/california/articles/2019-08-09/lawsuit-challenges-california-law-requiring-women-on-boards.

^[3] Id.

^[4] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018) www.latimes.com/politics/la-pol-ca-governor-women-corporate-boards-20180930-story.html.

^[5] Governor Signs Jackson Bill to Make California the First State to Require Women on Corporate Boards. Senator Hannah-Beth Jackson- Representing Senate District 19, (Oct. 2, 2018) sd19.senate.ca.gov/news/2018-10-01-governor-signs-jackson-bill-make-california-first state-require-women-corporate.

^[6] Ibid.

 ^[7] Judicial Watch. Judicial Watch Sues California Over Gender Quota Mandate for Corporate Boards. Los Judicial Watch. (Aug. 9, 2019) www.judicialwatch.org/press-releases/judicial-watch-sues-california-over-gender-quota-mandate-for-corporate-boards/.

^[8] Ibid.

^[9] Maj Veseghi & Sarah Ray, Bill to Impose Gender Quotas in Boardrooms Reflects Larger Trend, Daily Journal (Sep. 11, 2018) https://www.lw.com/thoughtLeadership/bill-to-impose-gender-quotas-in-boardrooms-reflects-larger-trend-daily-journal

^[10] Assembly Judiciary Committee Staff Report, at 6.

^[11] Lawsuit Challenges Constitutionality of California Law Mandating Women on Public Company Boards. O’Melveny, (Aug. 14, 2019) www.omm.com/resources/alerts-and-publications/alerts/lawsuit-challenges-constitutionality-of-california-law-mandating-women-on-public-company-boards/.

^[12] Id.

Andrew Sun, CLS ’21

            After gerrymandering reform efforts met disappointment at the Supreme Court in Rucho v. Common Cause, which held that federal courts did not have enough guidance by the federal Constitution to handle gerrymandering challenges, a glimmer of hope came from a North Carolina state court.^[1] A three-judge panel sitting in Wake County, North Carolina ruled unanimously in Common Cause v. Lewis that North Carolina’s Constitution provided sufficient guidance in a gerrymandering challenge and held that state legislative maps were unlawful as against the North Carolina Constitution’s free election, equal protection, freedom of speech, and freedom of assembly clauses.^[2] This decision has the potential to serve as a guide for litigants and judges in other states to formulate the legal arguments against gerrymandered state legislative maps, especially in a time when federal courts have shuttered their doors to these challenges.^[3]

The specific remedies that the court ordered and the lessons of the decision’s aftermath may also prove to be particularly instructive to litigants and courts in other states seeking to remedy gerrymandered maps.  Below are the remedies discussed in the remainder of the article, although additional remedies were included in the decision.^[4]

• Timeline: The court required the legislature to create new maps within two weeks of the decision and also retained the authority to change scheduled election dates if doing so should become necessary to provide proper relief.^[5] The new maps must then be approved by a court appointed expert referee from Stanford University.^[6]
• Election data: Partisan considerations, elections results, and other election data cannot be used in the drawing of the new districts, and intentional attempts to favor voters or candidates of one political party is prohibited.^[7]
• Maps used as starting points: The maps invalidated in the case may not be used as a starting point for the new maps.^[8]
• Incumbency protection: Drafters of the remedial maps are allowed to take steps such that incumbents are not pitted against each other in the same district.^[9]
• Public process: The remedial process must be conducted “in full public view,” which, at a minimum, requires all map drawings to occur at public hearings.^[10]

At the time of the writing of this article, the court is reviewing remedial maps passed by both chambers of the North Carolina legislature.^[11] Mitch Kokai, senior political analyst at the John Locke Foundation, says that the maps are likely to be approved by both the expert and the court because of strong bipartisan support.^[12] PlanScore, a nonpartisan group that analyzes maps nationwide, suggested that the new maps are an improvement over their predecessors.^[13]

Yet the redistricting process has not been without controversy. Although the process has taken place with an unprecedented degree of transparency, the method by which the baseline map was chosen and developed upon raised suspicion.^[14] The starting map that the legislature worked from was taken from a set of 1,000 maps simulated by Jowei Chen, a political scientist who served as an expert for the plaintiffs challenging the gerrymandered maps.^[15] These maps were not drawn in public view, as they were created before the trial as trial evidence.^[16] Additionally, during the mapmaking process a private legal team for the GOP shared a link with members of the House of Representatives containing political data for each of Chen’s maps, describing which would be more or less advantageous for GOP candidates.^[17] Although the link was quickly shut down, this email still caused a delay in the mapmaking process due to the uncertainty of whether the process was prejudiced as a result of any lawmaker being exposed to the contents of the link.^[18]

Some have also raised more general arguments against the court’s remedy. One economist has posited that barring the legislature from using partisan considerations and encouraging them to follow county lines is mathematically likely to produce more skewed districts, against the goal of the court.^[19] Others, like Charlotte Senator Jeff Jackson and J. Michael Bitzer, scholar of North Carolina politics at Catawba College, challenge that legislators should not be involved at all in the redrawing process, as they are motivated by their own political interests.^[20] A specific concern is that although partisan considerations are not allowed in the mapmaking process, Republicans can still serve their own political interests through the court’s allowance of incumbency protection, since currently most incumbents are Republican.^[21]

So far, it seems that the court has successfully compelled the legislature to change their maps, but only time will tell as to whether the decision will improve the rights of voters in North Carolina. Either way, those seeking to challenge gerrymandering in other states ought to keep a close watch on how the aftermath of Lewis unfolds.

^[1] 139 S. Ct. 2484, 2507 (2019).

^[2] No. 18 CVS 014001, 2019 N.C. Super. LEXIS 56 (N.C. Super. Ct., Wake County Sept. 3, 2019).

^[3] See Amber Phillips, Why Democrats’ Big Gerrymandering Win in North Carolina Matters, Washington Post (Sept. 4, 2019), https://www.washingtonpost.com/politics/2019/09/04/how-democrats-win-north-carolinas-redistricting-battle-could-reverberate/; see also Ella Nilsen & Tara Golshan, A North Carolina Court Just Threw Out Republicans’ Gerrymandered State Legislature Map, Vox (Sept. 3, 2019), https://www.vox.com/policy-and-politics/2019/9/3/20848087/north-carolina-court-republican-gerrymander-state-legislature-map.

^[4] For a complete description of the court’s remedies, see Lewis, 2019 N.C. Super. LEXIS 56 at *404-420. Other court orders such as compliance with the Voting Rights Act and country grouping requirements have not generated much controversy thus far. As a result, these remedies have been omitted.

^[5] Id. at *413.

^[6] Michael Wines, In North Carolina, New Political Maps Don’t End Old Disputes, N.Y. Times (Sept. 17, 2019), https://www.nytimes.com/2019/09/17/us/north-carolina-gerrymandering.html.

^[7] Lewis, 2019 N.C. Super. LEXIS 56, at *416-17.

^[8] Id. at *417.

^[9] Id. at *416.

^[10] Id. at *418-19.

^[11] Brent Van Vliet, New State Legislative Maps Head to N.C. Superior Court for Approval, Daily Tar Heel (Sept. 23, 2019), https://www.dailytarheel.com/article/2019/09/new-ncga-maps-0923.

^[12] Id.

^[13] Wines, supra note 6.

^[14] Will Doran, Did NC Lawmakers Look at Data Banned by Gerrymandering Ruling on Day 1 of Redraw?, Raleigh News & Observer (Sept. 10, 2019), https://www.newsobserver.com/news/politics-government/article234925852.html.

^[15] Mark Joseph Stern, Instead of Fixing Their Gerrymander, North Carolina Republicans Are Trolling the Court, Slate (Sept. 10, 2019), https://slate.com/news-and-politics/2019/09/north-carolina-republicans-gerrymander-trolling-court.html.

^[16] Id.

^[17] Doran, supra note 14.

^[18] Id.

^[19] See Charles Blahous, Don’t Expect a Revolution from NC Gerrymandering Ruling, E21 (Sept. 13, 2019), https://economics21.org/north-carolina-gerrymandering-ruling-district-maps.

^[20] Will Doran, New Political Maps Pass NC Legislature, Will Be Reviewed by Judges Who Ordered Redraw, Raleigh News & Observer (Sept. 17, 2019), https://www.newsobserver.com/news/politics-government/article235159817.html; Wines, supra note 6.

^[21] Van Vliet, supra note 11; see also Stern, supra note 15.

Niusha Tavassoli, CLS ’21

In the past several weeks, there have been many headlines about vaping-induced hospitalizations. When looking at who to blame for this pandemic, there has been a lot of finger pointing from state and federal government officials. Earlier this week, Acting Chief of the FDA, Ned Sharpless, expressed that he felt the FDA should have acted sooner and is now playing a game of catch up to regulate the vaping industry.^[1] At the center of this controversy is Juul Labs, a Silicon Valley based e-cigarette start-up that has been valued at $35 billion.^[2]

In the past two years, there has been an uptick in vaping and e-cigarette usage. This uptick is especially startling when looking at teen e-cigarette usage. According to a statistic provided by the FDA, from 2017 to 2018, the number of high school students who reported current e-cigarette use within the last 30 days increased 78% to include a total of approximately 3.05 million American high school students.^[3]

E-cigarette companies, and predominantly Juul Labs, have been criticized by government officials for targeting their products to the younger populations due to the style of their advertising and the use of flavored products. Public health officials have stated that studies show that e-cigarette flavors encourage youth use of e-cigarettes and can in turn lead youth to become tobacco users.^[4] Additionally, the fact that the Juul vaporizer does not resemble traditional e-cigarettes is another factor that is attributed to its success amongst youth. However, Juul spokespersons stand by their products being an alternative for those trying to quit smoking.

“In 2016, FDA finalized a rule extending CTP’s regulatory authority to cover all tobacco products, including electronic nicotine delivery systems (ENDS) that meet the definition of a tobacco product. FDA regulates the manufacture, import, packaging, labeling, advertising, promotion, sale, and distribution of ENDS, including components and parts of ENDS but excluding accessories.”^[5] However, this rule has clearly not been utilized to control the current epidemic.

The Trump Administration has recently announced that there will be a forthcoming ban on all fruit-flavored e-cigarette products, unless approved by the FDA.^[6][7] Amidst the controversy, the CEO of Juul Labs, Kevin Burns, has resigned and the company has agreed to halt lobbying efforts against the ban.^[8]

However, as the Federal government has been slow to act, local governments have taken matters into their own hands. Out of frustration, many cities, including San Francisco where Juul is headquartered, have extended their own local bans on flavored tobacco products to temporarily ban the sale of e-cigarettes entirely beginning in 2020.^[9] Many other cities and states, such as Michigan, are following San Francisco’s suit.^[10] In fact, Massachusetts has taken the strongest stance against vaping, becoming the first state to place a temporary 4-month ban on e-cigarettes after the vaping-induced deaths of 9 individuals.^[11]

The regulations being implemented now are an attempt to clean up the mess that has been created by the lack of regulatory oversight. However, this raises the question of whether these regulations will now do more harm than good. While states are proposing banning e-cigarettes, they are still selling cigarettes and other tobacco products. It is important to consider whether these regulations will encourage the adults using e-cigarettes as a smoking aid and the youth who are now addicted, to turn to other tobacco products with known and serious harms. These realizations are crucial, especially in light of the fact that there is no specific vape product that has been linked to the vaping-induced hospitalizations.^[12] Furthermore, many states have regulations banning tobacco sales to individuals under the age of 21.^[13] Effective enforcement of the regulations already in place could counteract the allure of the flavored pods. All in all, the implications of regulating the industry are important considerations and will have lasting consequences.

^[1]Thomas M. Burton, FDA’s Acting Chief Says Agency Acted Too Slowly to Avoid Vaping Crisis, Wall St. J. (Sept. 25, 2019), https://www.wsj.com/articles/fdas-acting-chief-says-agency-acted-too-slowly-to-avoid-vaping-crisis-11569433928?mod=searchresults&page=1&pos=7.

^[2]Angelica LaVito, Tobacco giant Altria takes 35% stake in Juul, valuing e-cigarette company at $38 billion, CNBC (Dec. 20, 2018), https://www.cnbc.com/2018/12/20/altria-takes-stake-in-juul-a-pivotal-moment-for-the-e-cigarette-maker.html.

^[3]2018 NYTS Data: A Startling Rise in Youth E-cigarette Use, FDA (Feb. 06, 2019), https://www.fda.gov/tobacco-products/youth-and-tobacco/2018-nyts-data-startling-rise-youth-e-cigarette-use.

^[4]2018 NYTS Data: A Startling Rise in Youth E-cigarette Use, FDA (Feb. 06, 2019), https://www.fda.gov/tobacco-products/youth-and-tobacco/2018-nyts-data-startling-rise-youth-e-cigarette-use.

^[5]Vaporizers, E-Cigarettes, and other Electronic Nicotine Delivery Systems (ENDS), FDA (Sept. 12, 2019), https://www.fda.gov/tobacco-products/products-ingredients-components/vaporizers-e-cigarettes-and-other-electronic-nicotine-delivery-systems-ends.

^[6] Sheila Kaplan, Trump Administration Plans to Ban Falvored E-Cigarettes, N. Y. TIMES (Sept. 11, 2019), https://www.nytimes.com/2019/09/11/health/trump-vaping.html.

^[7]Richard Harris and Carmel Wroth, FDA To Banish Flavored E-Cigarettes To Combat Youth Vaping, NPR (Sept. 11, 2019), https://www.npr.org/sections/health-shots/2019/09/11/759851853/fda-to-banish-flavored-e-cigarettes-to-combat-youth-vaping.

^[8]Bobby Allyn, Juul Accepts Proposed Ban On Flavored Vaping Products As CEO Steps Down, NPR (Sept. 25, 2019), https://www.npr.org/2019/09/25/764201798/juul-will-agree-to-ban-on-flavored-vaping-products-says-its-ceo-is-stepping-down.

^[9]Laura Klivans, San Francisco Bans Sale of E-Cigarettes, NPR (Jun. 25, 2019), https://www.npr.org/sections/health-shots/2019/06/25/735714009/san-francisco-poised-to-ban-sales-of-e-cigarettes.

^[10]Hannah Knowles, Massachusetts to ban sale of all vaping products for 4 months in toughest state crackdown, Wash. Post (Sept. 24, 2019), https://www.washingtonpost.com/health/2019/09/24/massachusetts-ban-all-vaping-product-sales-months-toughest-state-crackdown/.

^[11]Laurie McGinley, Michigan becomes first state to ban flavored e-cigarettes, Wash. Post (Sept. 04, 2019), https://www.washingtonpost.com/health/michigan-becomes-first-state-to-ban-flavored-e-cigarettes/2019/09/03/34f234c6-ce4c-11e9-8c1c-7c8ee785b855_story.html.

^[12]Hannah Knowles and Lena H. Sun, What we know about the mysterious vaping-linked illness and deaths, Wash. Post (Sept. 27, 2019), https://www.washingtonpost.com/health/2019/09/07/what-we-know-about-mysterious-vaping-linked-illnesses-deaths/.

^[13]Michael Greenwood, Banning tobacco sales to people under age 21 reduces smoking, Yale News (Jul. 26, 2019), https://news.yale.edu/2019/07/26/banning-tobacco-sales-people-under-age-21-reduces-smoking.

Samuel E. Weitzman, CLS ’21

In Carlson v. Postal Regulatory Comm’n, recently appointed D.C. Circuit Judge Neomi Rao delivered her first opinion pertaining to administrative law.^[1] Judge Rao worked extensively on administrative law issues before ascending the federal bench, both in academia and as the administrator of the Office of Information and Regulatory Affairs.^[2] As such, she already has expressed her views on various topics in public. Like Justice Thomas (for whom she clerked)^[3] and Justice Scalia (whom she described as a “remarkable man” with whom she agreed “about many matters of legal interpretation”),^[4] she is highly critical of congressional delegation to administrative agencies,^[5] favors an expansive view of the President’s “sphere of action,”^[6] and generally supports deregulation.^[7] For the first time, however, legal observers have some sense of how she will rule.

Carlson’s facts were more whimsical than remarkable. The pro se petitioner was Douglas F. Carlson, “a postal customer and watchdog.”^[8] Carlson challenged the Postal Regulatory Commission’s (PRC) five-cent increase in the price of “Forever Stamps” (from 50 cents to 55 cents) as arbitrary and capricious under the Administrative Procedure Act.^[9] Specifically, Carlson argued that – in promulgating Order 4875 – the PRC failed to (a) consider all of the relevant statutory factors and objectives specified in the Postal Accountability and Enhancement Act (PAEA); (b) explain its justification for the price hike consistent with the requirement of “reasoned decisionmaking”; or (c) respond adequately to public comments, including Carlson’s.^[10] The unanimous three-judge panel agreed, opting to vacate the new rates for first-class postage while leaving the rest of Order 4875 in place.^[11]

Whether or not the D.C. Circuit was right in its determination is immaterial for present purposes: this blog is about law, not philately. Of greater interest is how Judge Rao reached her conclusion – and what it portends for her jurisprudence. Notably, in distinguishing between rulemaking and adjudication, Judge Rao quoted twice from Justice Scalia’s solo concurrence in Bowen v. Georgetown Univ. Hosp.^[12] On the second occasion, she neglected to signal that her citation came from a single jurist rather than a majority of the Supreme Court – perhaps a mere Bluebooking error, but telling nonetheless.^[13] The difference between the majority and concurrence’s views in Bowen was subtle yet significant. Speaking through Justice Kennedy, eight members of the Court held that agencies cannot promulgate legislative rules with retroactive effect unless Congress provides for that power using “express terms.”^[14] Justice Scalia, meanwhile, maintained that administrative rules could never apply retroactively: for him, rules were exclusively prospective, while adjudications were wholly retroactive.^[15] Bowen remains good law, and Justice Scalia’s concurring opinion has received its share of scholarly criticism.^[16]

Judge Rao’s suggestion that, instead, Justice Scalia’s interpretation is the law of the land provides two insights into her approach. First, in adhering to Justice Scalia’s rigid delineations of APA categories, Judge Rao exhibited her formalist predilections. This demonstration was no revelation, following as she does in the footsteps of Justices Scalia and Thomas. Her formalism manifested itself elsewhere in the opinion, too, including through her textualist mode of rejecting the PRC’s interpretation of the PAEA.^[17] Second, Judge Rao evinced a willingness to disregard precedent in favor of adopting a position hewing closer to her ideological preferences. She is hardly alone in doing so; jurists often borrow from non-controlling opinions to bolster their rhetoric. And sometimes, the concurrence or dissent really does become the doctrinal standard.^[18] Perhaps Judge Rao is just ahead of the curve on rejecting Bowen presumption in favor of a categorical approach. If not, however, she risks wandering into areas unblessed – or even precluded – by prevailing doctrine.

How one feels about these tendencies may depend on how one conceives of the law, and thus one may either welcome or worry about these facets of Judge Rao’s jurisprudence. One thing is certain, however: her implicit rejection of Bowen will be just the first of many contributions Judge Rao makes to administrative law from her new seat on the federal bench.

^[1] Carlson v. Postal Regulatory Comm’n, No. 18-1328, 2019 WL 4383260 (D.C. Cir. Sept. 13, 2019). Carlson was Judge Rao’s second opinion authored for the D.C. Circuit. Her first opinion did not involve any issues of administrative law. See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 933 F.3d 751 (D.C. Cir. 2019).

^[2] Karen Zraick, Neomi Rao Will Replace Brett Kavanaugh on Key Appeals Court, N.Y. Times (Mar. 13, 2019), https://www.nytimes.com/2019/03/13/us/politics/neomi-rao-confirmed.html.

^[3] Id.

^[4] Remembering Justice Antonin Scalia, Antonin Scalia L. Sch. (last visited Sept. 25, 2019), https://www.law.gmu.edu/news/2016/scalia_tribute.

^[5] See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015).

^[6] See Neomi Rao, The President’s Sphere of Action, 45 Willamette L. Rev. 527 (2009). See also Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205 (2014).

^[7] See Neomi Rao, The Trump Administration’s Deregulation Efforts are Saving Billions of Dollars, Wash. Post. (Oct. 17, 2018), https://www.washingtonpost.com/opinions/the-trump-administration-is-deregulating-at-breakneck-speed/2018/10/17/09bd0b4c-d194-11e8-83d6-291fcead2ab1_story.html.

^[8] Carlson, 2019 WL 4383260, at *3. Carlson has also been described as “sort of a Ralph Nader of the mail.” See Carl Nolte, Stamping Out Mail Problems: Civilian Advocate Addresses Service at the U.S. Postal Service, S.F. Chron. (Sept. 4, 2001), https://www.sfchronicle.com/bayarea/article/PROFILE-Doug-Carlson-Stamping-out-mail-2882873.php.

^[9] Carlson, 2019 WL 4383260, at *4.

^[10] Id. at *4.

^[11] Id.

^[12] Id. at *1–2 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 219 (1988) (Scalia, J., concurring)).

^[13] Id. at *2 (quoting Bowen, 488 U.S. at 218 (Scalia, J., concurring)).

^[14] Bowen, 488 U.S. at 208.

^[15] Id. at 216–25 (Scalia, J., concurring).

^[16] See, e.g., Ronald M. Levin, The Case for (Finally) Fixing the APA’s Definition of “Rule,” 56 Admin L. Rev. 1077, 1085–88 (2004); William F. Luneberg, Retroactivity and Administrative Rulemaking, 1991 Duke. L.J. 106, 143–47 (1991); Frederick Schauer, A Brief Note on the Logic of Rules, with Special Reference to Bowen v. Georgetown University Hospital, 42 Admin L. Rev. 447, 449–55 (1990). One author recently claimed that “Justice Scalia’s concurrence is frequently referred to as an explanation of the law.” However, the author provided no evidence for this bare assertion. See William C. Neer, Discerning the Retroactive Policymaking Powers of the United States Patent and Trademark Office, 71 Admin. L. Rev. 413, 426 (2019).

^[17] Carlson, 2019 WL 4383260, at *8–10.

^[18] See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–55 (1952) (Jackson, J., concurring).

By Bret Matera, CLS ’20

Following an anti-climactic decision in last term’s Gill v. Whitford,[1]political gerrymandering returned to controversy on March 26th when the Supreme Court heard arguments for Rucho v. Common Cause.[2]  The case comes out of federal court in North Carolina and concerns the congressional maps used in the 2016 elections.[3]

Plaintiff-appellees allege that Republican lawmakers drew the maps to deliberately dilute the votes of Democrats through a practice called “cracking and packing.”[4]In response, defendant-appellants present three questions before the Court: (1) whether plaintiffs have standing to press their claim; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map actually is an unconstitutional gerrymander.[5]

The first question directly addresses the Court’s decision in Whitford. Many believed that Whitford would be the case to finally sway Justice Kennedy’s vote on the political gerrymandering issue,[6]but the Court ultimately decided on standing instead of merit.[7]To be injured, the Court held that a litigant must show that she lives in a cracked or packed district, and that she couldbe placed in an uncracked or unpacked district by an alternative map.[8]TheWhitford Court further made clear that claims of injury from partisan gerrymandering must be district-specific and not plan-wide.[9]Appellees here seem confident that their case meets those criteria, and argue that the court below “scrupulously follow[ed]” Whitford’s guidance.[10]

The second question, on justiciability, is perhaps the most familiar of the three. Whether a claim is justiciable essentially boils down to whether the Court is able to provide a remedy for the alleged harm.[11]Early gerrymandering cases considered the practice to be a function of separation of powers—in other words, that the appropriate remedy for fixing a broken district was through the political process, not the court system.[12]The Court has waffled over when it is appropriate to wade into the “political thicket” since at least the 1940’s.[13]Justiciability continues to plague map-challengers, and Common Cause is no different, as illustrated by the significant time the appellees devote to show that this is just a case involving politics and nota question of how politics should work.[14]

Finally, the third question presented is what gives this case real blockbuster potential: whether partisan gerrymandering itself is repugnant to the Constitution. Previous challenges to the practice have attempted, with varied success, to litigate under the Fourteenth Amendment’s Equal Protection Clause framework.[15]Common Causeoffers a different theory of harm—that partisan gerrymandering is unconstitutional pursuant to the First Amendment.[16]Justice Kennedy flirted with this conceptual framework in a concurring opinion back in 2004,[17]and just last term Justice Kagan hinted her interest in a First Amendment framework in her concurring Whitford opinion.[18]

Accordingly, appellees make the principal argument that North Carolina’s redistricting plan runs afoul of “at least four well-established lines of First Amendment precedent.”[19]First, they argue that the plan burdens voters based on “motivating ideology;”[20]second, that it regulates protected activity “based on the identity of the speaker;”[21]third, that the plan penalizes individuals due to “association with a political party” and for expression of their political views;[22]and finally, that the plan does not constitute a “reasonable, non-discriminatory” election regulation.[23]A district court panel below unanimously held that violations of these four principles caused the North Carolina Democratic Party and voter-plaintiffs to suffer well-recognized First Amendment harms such as the “decreased ability to mobilize their party’s base, persuade independent voters to participate, attract volunteers, raise money, and recruit candidates.”[24]Quite a few First Amendment organizations also seem to agree, and have filed amicus briefs in support of the appellees.[25]

But this is no longer Kennedy’s Court. The newly confirmed Justice Kavanaugh now sits in his former mentor’s seat, and while some election law scholars believe that Kavanaugh could be “in play,”[26]it’s anyone’s guess as to whether he’ll find the First Amendment any more appropriate than the Fourteenth Amendment as a conceptual framework.

[1]138 S. Ct. 1916 (2018).

[2]Rucho v. Common Cause, 318 F.Supp.3d 777 (M.D.N.C. 2018), cert. granted, __ U.S. __ (2019)(No. 18-422).

[3]Id.

[4]Brief for Appellee League of Women Voters at 1, Common Cause v. Rucho, __ U.S. __ (2019) (18-422). “Cracking” is the practice of splitting a particular group of voters among many districts in order to deny them a sufficiently large voting bloc in any particular district. By contrast, “packing” is the practice of grouping a particular type of voter into a single electoral district as a way of diminishing that group’s influence in other districts.

[5]Brief for Appellant at 7, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[6]Adam Liptak & Michael D. Shear, Kennedy’s Vote Is in Play on Voting Maps Warped by Politics, N.Y. Times(Oct. 3, 2017), https://www.nytimes.com/2017/10/03/us/politics/gerrymandering-supreme-court-wisconsin.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer.

[7]Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018).

[8]Id.at 1931.

[9]Id.at 1933.

[10]Brief for Appellee Leaue of Women Voters at 1, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[11]See Colegrove v. Green, 328 U.S. 549 (1946) (“And so, the test for determining whether a federal court has authority to make a declaration such as is here asked, is whether the controversy ‘would be justiciable in this Court if presented in a suit for injunction.’” (quoting Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249, 262 (1933)).

[12]SeeBaker v. Carr, 369 U.S. 186, 210 (1962) (“The nonjusticiability of a political question is primarily a function of the separation of powers.”).

[13]Colegrove v. Green, 328 U.S. 549, 556 (1946) (“To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.”).

[14]SeeBrief for Appellee Common Cause at 35-40,Common Cause v. Rucho, __ U.S. __ (2019) (18-422) (arguing against the Appellant’s proposition that the Judiciary lacks authority to hear partisan-gerrymandering cases).

[15]See, e.g., Vieth v. Jubilirer, 541 U.S. 267 (2004) (holding in a plurality decision that political gerrymandering cases are not justiciable); Davis v. Bandemer, 478 U.S. 109 (1986) (holding in a plurality opinion that political gerrymandering claims are justiciable under the Fourteenth Amendment’s Equal Protection Clause); Karcher v. Daggett, 462 U.S. 725 (1983) (invalidating a New Jersey redistricting plan under the Equal Protection Clause for unjustified departures from perfect population equality among districts); Reynolds v. Sims, 377 U.S. 533 (1964) (establishing the “one-person, one vote” doctrine under the Equal Protection Clause).

[16]Brief for Appellee Common Cause at 53-57, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[17]See Vieth, 541 U.S. at 314 (Kennedy, J., concurring)(“The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.”).

[18]See Whitford, 138 S. Ct. at 1938 (Kagan, J., concurring) (“But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members.”).

[19]Brief for Appellee Common Cause at 54-55, Common Cause v. Rucho, __ U.S. __ (2019) (18-422).

[20]Id. (quoting Rosenbergerv. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)).

[21]Id.(quoting Citizens United v. FEC, 558 U.S. 310, 340-41 (2010)).

[22]Id. (quoting Vieth, 541 U.S. at 314 (Kennedy, J., concurring)).

[23]Id.(quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)).

[24]Common Cause v. Rucho, 318 F.Supp.3d 777, 834 (M.D.N.C. 2018).

[25]Among others, the First Amendment Clinic at Duke Law School, the First Amendment and Election Law Scholars, the Brennan Center for Justice, and the American Civil Liberties Union filed amici briefs supporting a First Amendment theory of harm for political gerrymandering. SeeRucho v. Common Cause, ScotusBlog(last accessed Mar. 26, 2019), https://www.scotusblog.com/case-files/cases/rucho-v-common-cause-2/.

[26]Rick Hasen, Is Justice Kavanaugh in Play in the Partisan Gerrymandering Cases? Or is that Too “Big” of a “Lift”?, Election Law Blog(Mar. 26, 2019), https://electionlawblog.org/?p=104355.

By Jun Nam, CLS ’20

California Governor Gavin Newsom recently signed an executive order that indefinitely imposed a moratorium on the state’s death penalty.[1] For those familiar with Governor Newsom’s politics, this recent news might come as no surprise.  As mayor of San Francisco, then-Mayor Newsom was an early champion of progressive causes such as same-sex marriage and the legalization of marijuana.[2]  With this latest action, Governor Newsom’s executive order granted reprieve to the 737 inmates currently on death row, withdrew the state’s lethal injection protocol, and closed the death chamber at San Quentin State Prison.[3]  To be sure, this was a significant move, and a victory to be celebrated for those who disagree with the death penalty.  But Governor Newsom’s action came in the form of an executive order, which does not have the permanence of duly enacted law.  Executive orders are a useful tool that executives in recent years have often resorted to when struggling to enact policy through the legislature.  Governor Newsom’s actions reflect in part this broader trend in politics of unilateral executive action that is not backed by the force of the legislative process.

Both Presidents Obama and Trump have used executive orders to carry out their respective agendas.  One of its most significant uses during the Obama presidency was the creation of the Deferred Action for Childhood Arrivals program—or DACA.[4]   Faced with a resistant Congress, President Obama acted unilaterally in creating DACA, which granted temporary reprieve to undocumented immigrants who were illegally brought to the United States as children, so long as they met certain conditions.[5]  As for President Trump, he has used his executive power most notably to implement the “Travel Ban,” and also to affect other policies such as environmental regulations,[6]and recently, to ensure free speech on college campuses.[7]

While executive orders carry the weight and force of law in their implementation, they do not enjoy the permanence of a duly passed law and are easily reversible by a subsequent executive order.  DACA serves as a case in point.  In signing DACA, President Obama himself acknowledged that this was an “imperfect substitute for legislation,” explicitly stating that it was “not a permanent fix.”[8] President Trump proved these statements to be true when he announced in 2017 that he would end DACA,[9]only to be prevented from doing so by the courts.  The issue there was not whether President Trump had the power as the executive to reverse a prior executive order, but rather whether there was adequate justification for such reversal.[10]  The former was not in doubt.

Governor Newsom’s executive order is not immune from these same drawbacks.  While the governor may not face reversals of his executive order any time soon given that he assumed office only months ago, the law itself remains the same: the death penalty is legal in California.  Local prosecutors may still pursue capital punishment if they believe it is warranted.[11] For a more permanent solution, Governor Newsom must act through the legislature.[12]  But this is not easy—even in a staunchly blue state like California.  In as recent as 2016, California voters chose to retain the death penalty, and further, voted to expedite the process for executions.  Unless California citizens have changed their mind, this latest action remains an imperfect and impermanent fix.

[1]Tim Arango, California Death Penalty Suspended; 737 Inmates Get Stay of Execution,N.Y. Times(Mar. 12, 2019), https://www.nytimes.com/2019/03/12/us/california-death-penalty.html.

[2]Carla Marinucci, Newsom Takes His Case Against the Death Penalty to National Stage, Politico(Mar. 15, 2019), https://www.politico.com/states/california/story/2019/03/14/newsom-takes-his-case-against-death-penalty-to-national-stage-914806.

[3]Arango, supranote 1.

[4]Richard Gonzales, 5 Questions About DACA Answered, National Public Radio (N.P.R.)(Sept. 5, 2017), https://www.npr.org/2017/09/05/548754723/5-things-you-should-know-about-daca.

[5]Scott Horsley, Obama Calls Trump’s Reversal on DREAMers ‘Self-Defeating,’ ‘Cruel’, N.P.R.(Sept. 5, 2017), https://www.npr.org/2017/09/05/548708941/obama-calls-trumps-reversal-on-dreamers-self-defeating-cruel.

[6]SeeAidan Quigley, The Agenda: All of Trump’s Major Executive Actions So Far, Politico (Mar. 8, 2017), https://www.politico.com/agenda/story/2017/01/all-trump-executive-actions-000288.

[7]SeeSusan Svrluga, Trump Signs Executive Order on Free Speech on College Campuses, Washington Post(Mar. 21, 2019), https://www.washingtonpost.com/education/2019/03/21/trump-expected-sign-executive-order-free-speech/?utm_term=.99be4eaee75e.

[8]Horsley, supranote 5.

[9]SeeMichael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA and Calls on Congress to Act, N.Y. Times(Sept. 5, 2017), https://www.nytimes.com/2017/09/05/us/politics/trump-daca-dreamers-immigration.html.

[10]See Adam Liptak & Michael D. Shear, Supreme Court Turns Down Trump’s Appeal in ‘Dreamers’ Case, N.Y. Times(Feb. 26, 2018), https://www.nytimes.com/2018/02/26/us/politics/supreme-court-trump-daca-dreamers.html.

[11]While prosecutors can still pursue the death penalty, Governor Newsom’s temporary stay remains in effect and would prevent the death penalty from actually being implemented.  SeeThe Editorial Board, A Pause on the Nation’s Biggest Death Row, N.Y. Times(Mar. 13, 2019), https://www.nytimes.com/2019/03/13/opinion/california-death-penalty-gavin-newsom.html.

[12]Alternatively, in California, voters can also change or enact laws directly by proposing an initiative, collecting enough signatures to qualify for the ballot, and winning a majority of votes in an election.

By TJ Wong, CLS ’20

The Internet of Things (IOT) has made a lot of things in life much easier, including making the perfectly cooked toast.[1]The concept refers to the development of internet-connected versions of ordinary objects, which span to everything from coffeemakers to smart cars.[2]While offering endless benefits to daily life, the rapid rise of IOT has generated serious implications for existing computer crime laws, namely the Computer Fraud and Abuse Act (CFAA). Enacted as an amendment to existing laws addressing computer-related criminal activity,[3]the CFAA prohibits accessing a computer without authorization or exceeding authorized access and obtaining information from any “protected computer,” under § 1030(a)(2).[4]Courts have often easily accepted the broad definition of “protected computer” in light of other, more prominent limitations of the CFAA;[5]however, the seemingly endless proliferation of IOT devices justifies reconsidering “protected computer” as a worthy limitation on the breadth of conduct criminalized by the statute.

The CFAA currently defines “protected computer” as a computer that is “exclusively for the use of a financial institution or the United States Government,” or one that is “used in or affecting interstate or foreign commerce or communication.”[6]While the CFAA originally covered only important “federal interest” computers,[7]courts across the country have since interpreted “protected computer” to encompass any computer with an internet connection.[8]Furthermore, a “computer” is defined to essentially cover any device that processes or stores data,[9]including computer networks, databases, cell phones, MP3 players, refrigerators, and temperature control units.[10]As the definition covers anything with a microchip,[11]it includes all IOT devices feeding us data online, such as fitness watches and voice assistants. In the age of IOT, the CFAA’s definition of “protected computers” expands to cover items beyond the plain meaning of the term, as how toasters or refrigerators are not typically viewed in society as “computers.” As “Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking,”[12]it seems unlikely that this dramatic expansion was contemplated.

This ever-expanding coverage of the term “protected computer” raises issues of vagueness and overly broad criminalization over the scope of the CFAA. For example, in conjunction with the Ninth Circuit’s interpretation of “without authorization” to cover common practices like password sharing, the extremely broad definition of “protected computer” contributes to potentially criminalizing individuals that share accounts over IOT devices.[13]Instead of using “protected computer” to serve as a significant limitation on the CFAA, courts have dedicated more attention to determining the scope of “without authorization or exceeds authorized access,” as well as relying on prosecutorial discretion to check arbitrary enforcement.[14]However, this approach may prove untenable in light of the uncertainty surrounding other CFAA terms, as circuits have been split over the proper interpretations of “without authorization” and “exceeds authorized access.”[15]

If it is not given enough attention, the expansive definition of “protected computers” could lead to unintended consequences after a circuit declares its stance on “access” or “authorization.” For example, the Second Circuit in United States v. Valle, 807 F.3d 508, 524 (2d Cir. 2015), held that “one ‘accesses a computer without authorization’ if he accesses a computer without permission to do so at all,”[16]along with interpreting “exceeds authorized access” as a limitation on access and not on use.[17]Consider a company that gives employees IOT devices such as voice assistants, indoor security cameras, smart keychains, or fitness watches. Under the Vallecourt’s interpretations of access and authorization, an IT employee of this company, who has a single proper purpose to access the devices for maintenance or troubleshooting, could potentially be free from CFAA liability after observing and obtaining very personal information on other employees – e.g., biometric data, location tracking, online retail or medicine orders, or even video feeds.[18]These cases also involve radically distinct types of information without the statute, as currently constructed, being able to adequately account for these differences.

The broadening scope of “protected computers” to cover everything from computers of financial institutions and the U.S. government to fitness watches, baby monitors, and home thermostats also creates problems for the penalty structure of the CFAA. The CFAA criminalizes intentionally accessing a computer without authorization or exceeding authorized access and obtaining information from any protected computer;[19]however, as mentioned above, the types of information that can be obtained from “protected computers” can be drastically and increasingly different. Nonetheless, a statutory maximum of one-year imprisonment and fines applies, with heightened penalties reserved for offenses with commercial purposes, offenses in furtherance of other unlawful conduct, information valued above $5,000, and individuals with prior CFAA convictions.[20]As such, the statutory penalties could fail to reflect whether the information improperly accessed and obtained was secrets from a government or bank computer, private biometric information, logs of someone’s shopping history, or records of one’s intimate at-home behaviors.[21]By establishing workable and meaningful distinctions between types of internet-connected devices, the CFAA could be more effective in criminalizing and deterring malicious conduct. With the rapid, constant innovation in technology, Congress may never be able to create definitions that stand the test of time; however, in light of the Internet of Things, it’s time that the CFAA is reevaluated to distinguish between traditional “computers” and smart toasters.

[1]Roberto Baldwin, The world now has a smart toaster(Jan. 4, 2017), https://www.engadget.com/2017/01/04/griffin-connects-your-toast-to-your-phone/

[2]Jacob Morgan, A Simple Explanation Of ‘The Internet Of Things’(May 14, 2014), https://www.forbes.com/sites/jacobmorgan/2014/05/13/simple-explanation-internet-things-that-anyone-can-understand/#5b3598c11d09

[3]OFFICE OF LEGAL EDUC., EXEC. OFFICE FOR U.S. ATT’YS, PROSECUTING COMPUTER CRIMES 1-2 (2010), http://www.justice.gov/criminal/cybercrime/docs/ccmanual.pdf(last visited Mar. 29, 2019).

[4]18 U.S.C. § 1030(a)(2)(C).

[5]Namely, interpretations of “without authorization or exceeding authorized access” and prosecutorial discretion. See generallyUnited States v. Yücel, 97 F.Supp.3d 419 (S.D.N.Y.2015); LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9^thCir. 2009); WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4^thCir. 2012); United States v. Rodriguez, 628 F.3d 1258 (11^thCir. 2010); United States v. John, 597 F.3d 263 (5^thCir. 2010); Int’l Airport Ctrs. v. Citrin, 440 F.3d 418 (7^thCir. 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1^stCir. 2001).

[6]18 U.S.C. § 1030(e)(2).

[7]Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L. Rev. 1561, 1563 (2010).

[8]See Yücel, 97 F.Supp.3d 418-19 (collecting cases and noting “widespread agreement in the case law”).

[9]18 U.S.C. § 1030(e)(1). NOTE: stated exceptions for automatic typewriters, hand held calculators, or “other similar device[s].

[10]SeeUnited States v. Kramer, 631 F.3d 900, 902 (8^thCir. 2011);see alsoUnited States v. Nosal, 844 F.3d 1024, 1032 (9^thCir. 2016) (Nosal II); United States v. Mitra, 405 F.3d 492, 495 (7^thCir. 2005).

[11]Kerr, supranote 7, at 1572-72.

[12]United States v. Nosal, 676 F.3d 854, 858 (9^thCir. 2012).

[13]Nosal, 844 F.3d 1024, 1050-51 (Nosal II) (Reinhardt, J., dissenting).

[14]Yücel, 97 F.Supp.3d 419; see supranote 5.

[15]Tiffany Curtiss, Computer Fraud and Abuse Act Enforcement: Cruel, Unusual, and Due for Reform, 91 Wash. L. Rev. 1813, 1823 (2016).

[16]United States v. Valle, 807 F.3d 508, 524 (2d Cir. 2015).

[17]Id.at 527-28.

[18]These are types of data possibly acquired from popular IOT devices, such as voice assistants, indoor security cameras, smart keychains, and fitness watches.

[19]18 U.S.C. § 1030(a)(2)(A)-(C).

[20]18 U.S.C. § 1030(c)(2)(A)-(C).

[21]Id.; see supranote 18.

By Brannock Furey, CLS ’20

On Tuesday, the Supreme Court will hear oral arguments in Mont v. United States, a supervised release case that turns on two seemingly minor details: the use of the present tense in a federal statute, and a period of 24 days.[1]

Supervised release is designed to help monitor federal offenders after prison, and can result in reincarceration if any conditions set by the court are violated.[2]At issue in Mont is whether a federal district court had jurisdiction to revoke an individual’s supervised release after the initial date on which his supervision was scheduled to end.[3]Citing its decision in United States v. Goins as precedent, the 6th Circuit affirmed the district court’s determination that it could impose the revocation on March 30, despite the fact that the date on which his supervised release was set to expire––March 6––had passed three weeks prior.[4]

As the 6th Circuit noted in Mont, however, a clear circuit split exists between the 6th Circuit’s decision in Goinsand the D.C. Circuit’s decision inUnited States v. Marshregarding the interpretation of 18 U.S.C. § 3624(e), the provision that controls whether a term of supervised released may be suspended.[5]This led to the Supreme Court granting cert.

In their briefs submitted to the Court, Mont’s attorneys and the government disagree as to how § 3624(e) should be construed––and, consequently, over when the clock for a supervised release term should stop and start.[6]Section 3624(e) states that “supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”[7]

Mont’s lawyers, citing to Marsh, argue that since the statute uses the present tense, the imprisonment must take place after a conviction in order for the tolling provision to apply.[8]The government sharply contests this emphasis on the present-tense, and points to the phrase “in connection with” to support its argument that the provision can apply to imprisonment both before and after a conviction.[9]

In contrast to Marsh, the government takes the 6th Circuit’s position in Goins.[10]There, the appellate court held a defendant’s supervised-release period should pause during any pretrial detention for an indictment later resulting in a conviction, and where that incarceration was credited as time served.[11]Since the state court credited Mont’s pretrial detention to his 6-year state prison term, the government argues that his incarceration should fall within § 3624(e), and that the federal court therefore had jurisdiction on March 30 due to the tolling of Mont’s supervised release in October 2016.[12]

With more than 8 in 10 federal offenders undergoing supervised release after serving prison sentences, the Court’s decisions regarding the small distinctions at issue in Mont can have large implications for a great number of incarcerated individuals returning to society.[13]

[1]139 S.Ct. 451 (Mem), 202 L.Ed.2d 346.

[2]Congressional Research Service, Supervised Release (Parole): An Overview of Federal Law, 1.

[3]United States v. Mont, 723 Fed.Appx 325, 325 (6th Cir. 2018).

[4]Id. at 326, 328-29 (citing United States v. Goins, 516 F.3d 416 (6th Cir. 2008)).

[5]Id. at 330 (referring to United States v. Marsh, 829 F.3d 705 (D.C. Cir. 2016)).

[6]Fiona Doherty, Argument preview: Justices address circuit split on whether a period of pretrial imprisonment can toll a term of federal supervised release, SCOTUSblog (Feb. 21, 2019, 12:19 PM), https://www.scotusblog.com/2019/02/argument-preview-justices-address-circuit-split-on-whether-a-period-of-pretrial-imprisonment-can-toll-a-term-of-federal-supervised-release/.

[7]18 U.S.C. § 3624(e).

[8]Doherty, supranote 9.

[9]Id.

[10]Id.

[11]Mont, 723 Fed.Appx at 328 (citing Goins, 516 F.3d at 417).

[12]Doherty, supranote 9.

[13]Id.

By Malina Welman, CLS ’20

The 1926 U.S. Supreme Court landmark decision in Euclid v. Ambler Realty Co.— the one where Justice Sutherland infamously called apartment houses a “parasite”— is charged with tacitly giving municipalities across the country the green light to impose exclusionary restrictions on land.[1]Through the use of “snob zoning,” the Court’s decision empowered local governments for decades thereafter to exercise their police powers in order to keep out poor, more diverse city dwellers from white, wealthy suburbs.[2]

Since then, however, many of America’s municipalities have turned over a new leaf, so to speak, by enacting inclusionary policies that instead foster the creation of affordable homes for low- and moderate-income households. In fact, the Lincoln Institute of Land Policy has identified over five hundred programs across twenty-seven states, with New Jersey and California accounting for 65% of all inclusionary programs.[3]Yet, for some state-wide mandates, such as the one in California, these measures have often proved to be more symbolic than they have been effective in making good on their promise to create needed affordable housing opportunities.

In an article reviewing the impact of California’s inclusionary housing law (now over fifty years old), Liam Dillion pointed out that the fundamental problem with the law is that it merely required local governments to produce “prodigious reports to plan for housing – but [did not actually] hold them accountable for any resulting home building.”[4]The result: municipalities developed and adopted plans to build new affordable units in their communities with “‘no intention,’” as Councilman Herb Perez of Bay Area suburb Foster City admitted, “‘of actually building [them].’”[5]Indeed, the city recently went more than five years without approving new development projects despite the high demand for housing.[6]

In an effort to get California back on track, the state Legislature then passed 15 housing-related bills in 2017 to address housing affordability issues.[7]Two noteworthy bills were AB1505, which would require developers to include below-market units in new rental housing projects, and SB 35, which would require cities to approve projects such projects as long as they complied with local zoning regulations and a number of other requirements.[8]Nevertheless, it appears that communities are still attempting to evade their obligation through delay tactics. Such tactics often take the form of prolonged litigation that becomes costly enough to bankrupt developers, thereby resulting in a victory for neighbors without securing a favorable judgment from the court. In Cupertino, the affluent Silicon Valley neighborhood has been doing just that by going head-to-head with developers for over a decade about plans to build up to 2,400 new homes in a nearly-vacant shopping mall with a large percentage reserved for low-income residents.[9]Even in light of California’s new laws, Cupertino residents are resorting to other measures to defer the city council’s approval of the project through a voter referendum. However, their endeavors may ultimately be futile as developers are planning to go ahead with the project.[10]

Now, California’s new governor, Gavin Newsom, is stepping into the arena looking to end an era of inaction on the part of the state’s cities and counties to provide affordable housing. During his first state budget proposal in January, Governor Newsom came out swinging with, what Liam Dillon called, “a radical new step: punishing communities that block homebuilding by withholding state tax dollars.”[11]However, the governor is not waiting around to see whether municipalities heed his words. Weeks later, Governor Newsom filed a lawsuit against Huntington Beach for rezoning a parcel of land to restrict low-income housing.[12]Although it is still too early to tell what impact Governor Newsom’s aggressive policies will have on the affordable housing crisis in the state, it is an approach worth trying.

[1]Euclid v. Ambler Realty Co., 272 U.S. 365, 391, 394 (1926).

[2]See Elizabeth Winkler, “‘Snob Zoning’ is Racial Segregation by Another Name,” Washington Post(Sept. 25, 2017) https://www.washingtonpost.com/news/wonk/wp/2017/09/25/snob-zoning-is-racial-housing-segregation-by-another-name/?utm_term=.86f600b1f0ec.

[3]Rick Jacobus, “Inclusionary Housing: Creating and Maintaining Equitable Communities,” Lincoln Institute of Land Policy (2015), https://www.lincolninst.edu/sites/default/files/pubfiles/inclusionary-housing-full_0.pdf.

[4]Liam Dillon, “California Lawmakers Have Tried for 50 Years to Fix the State’s Housing Crisis. Here’s Why They’ve Failed,” Los Angeles Times(June 29, 2017), https://www.latimes.com/projects/la-pol-ca-housing-supply/.

[5]Id.

[6]Id.

[7]“California Governor Signs Inclusionary Zoning Bill Into Law,” National Apartment Association (Oct. 10, 2017), https://www.naahq.org/news-publications/california-governor-signs-inclusionary-zoning-bill-law.

[8]Id.; Liam Dillon, “New Law Could Break the Stalemate Over Housing On the Site of a Near-Vacant Cupertino Mall,” Los Angeles Times(Dec. 16, 2018), https://www.latimes.com/politics/la-pol-ca-state-law-housing-cupertino-20181216-story.html.

[9]Dillon, “New Law Could Break the Stalemate Over Housing On the Site of a Near-Vacant Cupertino Mall,” Los Angeles Times(Dec. 16, 2018), https://www.latimes.com/politics/la-pol-ca-state-law-housing-cupertino-20181216-story.html.

[10]Id.

[11]Liam Dillon, “Gov. Gavin Newsom Threatens to Cut State Funding From Cities That Don’t Approve Enough Housing,” Los Angeles Times (Jan. 10, 2019), https://www.latimes.com/politics/la-pol-ca-gavin-newsom-housing-money-budget-20190110-story.html.

[12]Allysia Finley, “California’s Liberal Governor Hauls a Conservative City to Court,” Wall Street Journal (Feb. 1, 2019), https://www.wsj.com/articles/californias-liberal-governor-hauls-a-conservative-city-to-court-11549060961.

By Christian Martinez, CLS ’20

“I plead the fifth.” Commonly used in American procedural dramas, this familiar phrase refers to one’s right under the Fifth Amendment not to be compelled in any criminal case to be a witness against oneself.[1]Specifically, the right against self-incrimination prevents the “state from: compelling a defendant to make a testimonial communication to the state that is incriminating.”[2]The Supreme Court has long held that testimonial communications were not limited to oral communications[3]but also includes physical acts that “relate a factual assertion or disclose information.”[4]For example, the act of producing incriminating documents in response to a subpoena is “testimonial” because the very act of producing those documents communicates that the individual knew such documents existed and either possessed or controlled them.[5]Similarly, the act of providing a password or combination to a digital device is also “testimonial” for Fifth Amendment purposes.[6]

Despite this, state and federal courts have held that the compelled use of an individual’s biometric features (e.g. fingerprint) to unlock a digital device is not testimonial and therefore not protected by the Fifth Amendment.[7]However, Magistrate Judge Kandis Westmore of the Northern District of California has recently ruled otherwise.[8]The Government submitted to Judge Westmore warrant applications that included, among other things, a request to compel certain individuals to use their biometric features to unlock digital devices.[9]In denying the application, Judge Westmore held that an individual’s use of biometric features to unlock a digital device is a testimonial communication protected by the Fifth Amendment.[10]Specifically, Judge Westmore reasoned that if an individual could not be compelled to provide a password under the Fifth Amendment, then an individual also could not be compelled to provide a biometric feature to unlock a device because it serves the same function as a password.Furthermore, a successful finger or thumb scan confirms ownership or control over the device and would “expose to the government far more than the most exhaustive search of a house[,]” including medical and financial records (which many smartphone apps provide and protect with biometric features).[11]

Judge Westmore’s decision is a resounding reminder that the law must be quicker to adapt to technological advancements. Under the rule adopted by most courts, there is a meaningful distinction under the Fifth Amendment between using a password to protect your smartphone and using your fingerprint to protect the very same smartphone. The rule has turned what seems like an arbitrary decision for most – whether to use a passcode or biometric feature to secure a digital device – into one with significant privacy ramifications. Worse still, if manufacturers of digital devices opt to remove the password option for securing devices, leaving only the biometric options, this rule would severely limit (if not eliminate) any Fifth Amendment protections as to these devices. As biometrics become increasingly integrated with daily life, it is necessary for courts to avoid the mechanical application of predigital rules to post-digital problems.[12]

[1]U.S. Const. amend. V.

[2]State v. Diamond, 905 N.W.2d 870, 873 (Minn. 2018).

[3]Schmerber v. California, 384 U.S. 757, 763-64 (1966).

[4]Doe v. United States (Doe II), 487 U.S. 201, 209-10 (1988).

[5]U.S. v. Hubbell, 530 U.S. 27, 36 (2000).

[6]In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012).

[7]See e.g. In re the Search of [Redacted], 317 F.Supp.3d 523, 535-36 (D.D.C. 2018); In re the Search Warrant Application for [Redacted], 279 F.Supp.3d 800, 807 (N.D. Ill. 2017); State v. Diamond, 905 N.W.2d 870, 875 (2018).

[8]In re Residence in Oakland, California, No. 4-19-70053, 2019 WL 176937, at *3 (N.D. Cal. Jan. 10, 2019).

[9]Id.at *1.

[10]Id.at *3.

[11]Id.at *4.

[12]Riley v. California, 573 U.S. 373, 406-07 (2014).

By Zane Muller, CLS ’20

The past few years have witnessed a dramatic increase in the prevalence and sophistication of algorithms. Advances in machine learning (sometimes called artificial intelligence) have delivered new applications in areas as diverse as credit risk evaluation, criminal sentencing and winning the ancient Chinese strategy game Go.  While they have long been incorporated into software and web interfaces, machine learning algorithms are increasingly used to improve consumer products, and consumers increasingly encounter them in the physical world.  As algorithms further permeate our everyday lives, the law will increasingly have to decide how to handle losses that arise when algorithms fail.

Design defects are intuitive in the case of, say, a lawnmower; but how is a machine learning algorithm “designed”?  In broad terms, machine learning refers to an automated process for identifying relationships between variables in a data set and making predictions based on those relationships.^[1] Those relationships accumulate into a “model”, or algorithm, which can then be used to make predictions or decisions based on new data.^[2] Their design involves two stages: “playing with the data” and “running the model.”[3] In the first stage, designers choose a set of data, determine an outcome goal (ie, “identify the likelihood that a given borrower will default”), and then train the model through various iterations until it independently delivers predictions in line with empirical results. In the second stage, designers “set it loose” in the world to interpret newly-gathered data and use it to deliver predictions or decisions, periodically refining or adjusting it based on the accuracy of results.

Will the law recognize and remedy injuries caused by a “defective” algorithm?  This  question arose in Wickersham v. Ford.[4]  In that case, the plaintiff’s husband committed suicide in the wake of an automobile accident that left him with continuous, extreme pain and debilitating injuries, including the loss of an eye.[5]  One of the  plaintiff’s expert witnesses stated that the cause of this injury was a 146-millisecond delay in the deployment of the seatbelt pre-tensioner and  side airbag.  A second expert witness testified that the cause of this delay was a defect in the design of the car’s Restraint Control Module (RCM), an electronic component that receives sensor data, processes it with an algorithm, and then determines whether and when to pre-tension seat belts and deploy airbags in anticipation of a collision.

In the instant case, the plaintiff’s expert witness alleged that Ford was negligent in designing its algorithm. More specifically, he claimed that the RCM was not properly calibrated for the type of crash the plaintiff’s husband experienced, and that his injuries could have been avoided if Ford had conducted more thorough testing.[6]

One challenge facing plaintiffs is that algorithms are “black boxes” whose workings are often opaque even to their designers. Here, the plaintiff was able to overcome this hurdle because her expert had experience working with a similar algorithm for General Motors.  Furthermore, the court held that the plaintiff alleged sufficiently particular and concrete facts to sustain a claim and denied Ford’s motion for summary judgment.[7]Wickersham presents a case where the causation of an injury by an algorithm’s failure is fairly straightforward; other plaintiffs, whose injuries may be less traceable to algorithmic design, may have a harder time overcoming summary judgment.  Not all algorithm design flaws will be as clear-cut as the failure to quickly deploy an airbag, but could nonetheless cause equally or more serious harms.  As algorithms further penetrate the physical world, these issues will only become more prominent and challenging for courts and lawmakers to resolve.

[1]Kevin P. Murphy, Machine Learning: A Probabilistic Perspective, 1 (2012).

[2]Michael Berry & Gordon Linoff, Data Mining Techniques: For Marketing, Sales, and Customer Relationship Management, 8-11 (2004).

[3]David Lehr & Paul Ohm, Playing With the Data: What Legal Scholars Should Learn about Machine Learning.51 U.C. Davis L. Rev. 653, 670 (2017).

[4]Wickersham v. Ford Motor Company, 194 F.Supp.3d 434 (2016).

[5]Id.at 435.

[6]Id. at 438.

[7]Id. at 436.