Volume 55, Issue 1

4 posts

Insurrection By Any Other Name? Race, Protest, and Domestic Military Intervention

By Ailee Katz

During the summer of 2020, protests against police violence and racial injustice erupted around the country. In response to the movement, governors and the federal government deployed National Guard troops in several states and Washington, D.C. President Trump also threatened to invoke the Insurrection Act to suppress the protests.

Drawing on the concepts of antisubordination and racial citizenship, this Note contends that modern military suppression of racial justice protest reproduces racial hierarchy by physically and symbolically suppressing the valid exercise of citizenship, speech, and demand for equal treatment. After surveying the historical and modern legal landscape governing domestic military deployment—including the Posse Comitatus and Insurrection Acts—this Note calls for an updated framework that significantly curtails presidential and gubernatorial authority to suppress social unrest with military force. This Note therefore expands on existing scholarship that has explored how policing exacerbates racial violence and inequality by examining how the military can and has been used to maintain white supremacy.

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Resuscitating the Entrapment Defense: A Statutory Approach

By Gage Hodgen

The entrapment defense has existed in American criminal law since the early twentieth century and remains relevant today. As the evolution of technology has enhanced the ability of the police to monitor and engage with potential criminals, sting operations by police have become increasingly commonplace in the investigation (or manufacture) of terrorism, drug, and sex crimes. Consequently, targets of sting operations are often placed in situations in which there is a risk of improper government inducement to commit criminal acts. Despite the increased complexity and frequency of sting operations, however, claims of entrapment by defendants based on the traditional theoretical formulations of the defense are nearly always unsuccessful when raised, and, in many appropriate cases, defendants do not raise entrapment claims at all.

This Note proposes a statutory resuscitation of the entrapment defense to make the defense more suitable to the modern policing system. Part I examines the traditional variants of the entrapment defense as it developed in the common law of the United States as either a subjective test of the predisposition of the defendant or an objective test of the government’s conduct. Part II interrogates the stated purposes of the subjective and objective approaches. Part III explores why the entrapment defense so often fails in situations in which factors suggesting entrapment are present and demonstrates that the entrapment defense today does not serve its foundational purposes. Part IV argues that the underlying rationales of both formulations of the entrapment defense militate in favor of reformulating the defense as a set of statutory rights against certain police behaviors.

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License & Registration: Addressing New York’s Police Misconduct

By Matthew Hanner

In the wake of the police killing of George Floyd, protesters flooded the streets demanding reform. States across the country responded with legislative action. Within weeks, New York State repealed Civil Rights Law § 50-a, which shielded disclosures of police misconduct records. The subsequent release of records showed the profound lack of accountability of police officers in the state. This Note argues that New York should enact a police licensing requirement to curb misconduct through uniform behavioral standards for all law enforcement officers, which would pull disciplinary power away from local departments, and prevent fired officers from regaining employment at other departments—problems that the existing remedies like internal affairs actions, civil suits, and criminal prosecutions fail to address.

Licensing creates stronger accountability because an independent state licensing commission would have the power to suspend or revoke licenses for violating professional standards. Currently, all states certify that officers meet certain standards prior to employment, and 46 states allow for revocation of these certifications. Certification boards vary state-to-state, however, in their scope of authority and permitted grounds for decertification. New York State only permits decertification of officers who are first fired from their departments. This process suffers from reliance on local department action. Examining the NYPD demonstrates how even the most well-resourced departments fail to adequately address officer misconduct when disciplinary decisions are made at the local level. Police licensing shifts authority to the state, following many other professions that already require licensing (lawyers, doctors, barbers, taxi drivers, etc.).

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Is This Video Real? The Principal Mischief of Deepfakes and How the Lanham Act Can Address It

By Quentin Ullrich

This Note argues that the false association cause of action under Section 43(a)(1)(A) of the Lanham Act is well-suited for addressing problems posed by deepfakes, and outlines for practitioners the mechanics of such a cause of action. A “deepfake,” which is a portmanteau of “deep learning” and “fake,” is a digitally manipulated, often highly realistic video that substitutes the likeness of one person with that of another. Due to the way they deceive their viewers, deepfakes pose a threat to privacy, democracy, and individual reputations. Existing scholarship has focused on defamation, privacy tort, copyright, regulatory, and criminal approaches to the problems raised by deepfakes. These legal approaches may at times be successful at penalizing the creators of pernicious deepfakes, but they are not based on a theory of consumer confusion, which this Note argues is the principal mischief posed by deepfakes. Further, since deepfakes are often uploaded anonymously and the only effective remedy is against website owners, certain of these approaches are frustrated by the Communications Decency Act’s immunization of website owners from liability for torts with a “publication” element. Hence, this Note proposes that the law of false association, which is principally concerned with consumer confusion, is best suited for addressing deepfakes. Importantly, a Lanham Act cause of action would allow victims of deepfakes to sue website owners under a theory of contributory infringement, because the Communications Decency Act does not immunize website owners from intellectual property claims.

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