The Common Law

By Reza Sarrafian

United States v. Betim Kaziu was the first time a federal court explicitly referenced the sentences and eventual pardons of two January 6 defendants when considering the punishment of a foreign terrorism defendant. Betim Kaziu’s resentencing raises questions about how courts should account for differences in sentencing between foreign and domestic terrorism cases, especially when both often rely on the same enhancement—United States Sentencing Guidelines Section 3A1.4. By comparing Kaziu’s sentence with those of January 6 defendants who led violent conspiracies against the United States government, the court acknowledged a perceivable disparity in how the enhancement can operate—highlighting that nonviolent material support for foreign terrorism may be punished as severely as overt acts of domestic political violence.

The terrorism enhancement in the United States Sentencing Guidelines was originally intended to punish international terrorism but has expanded to cover domestic acts, despite the absence of a standalone federal crime of domestic terrorism. Courts have shown a willingness to apply this enhancement broadly in domestic terrorism cases yet remain reluctant to use domestic terrorism cases as comparators when sentencing foreign terrorism defendants—particularly in nonviolent material support prosecutions. This Comment traces the history and development of Section 3A1.4, analyzes the judicial mechanisms that have enabled its expansive use in domestic terrorism cases, and examines the limited, cautious ways courts have incorporated domestic terrorism comparisons in foreign terrorism sentencing.  It argues that purely domestic offenses can serve as instructive comparators to reveal and address sentencing inconsistencies.  It ultimately contends that the enhancement should be reoriented to apply only to violent acts of terrorism.

Download Comment

By Tyler Henry

Sex devices, commonly referred to as “toys,” have grown in popularity over the past decade and somehow evaded regulations from consumer protection agencies. The Consumer Product Safety Commission (CPSC) has no specific regulatory standards for sex devices, regulating them as “novelty toys.” And the Food and Drug Administration (FDA) unnecessarily limits its oversight by only regulating “therapeutic” sex devices. These shortcomings create significant regulatory gaps, exposing consumers to harm, leading to thousands of emergency room visits annually. This Comment argues that FDA jurisdiction over sex devices as “medical devices” is appropriate and necessary to protect consumer health, especially for women and LGBTQ+ communities who are more likely to experience harm from sex devices.

Download Comment

By Kristen Popham

America’s rapidly expanding and politically influential nonprofit sector is under increased scrutiny, and nonprofit law has yet to provide answers to critics’ burning questions. If the nonprofit sector is born of a democratic commitment to pluralism and community linkages, what do we make of its contributions to plutocracy? If the federal government’s subsidization of the nonprofit sector reflects political choices about who and what serves the community benefit, should the sector include groups that actively undermine principles of civil rights? Should institutions be able to exploit the nonprofit legal form to exact discrimination? As the nation undergoes a rethinking of the government’s role in enforcing public and private norms, answers to these questions will prove critical.

This Comment aims to move the law one step forward in answering these questions by proposing modifications to the private benefit standard through the case study of nonprofit Name, Image, and Likeness (NIL) collectives. The Supreme Court’s landmark ruling in NCAA v. Alston both facilitated student compensation in collegiate athletics and prompted the growth of over 200 organizations pooling fan and alumni funds for school-specific athletes. These NIL collectives represent a black market for college athletic labor facilitated by weaknesses in nonprofit law. Offering a safe-haven free from the demands of federal antidiscrimination law, the nonprofit sector allows NIL collectives to amass great wealth for a small, disproportionately male subset of private individuals. In addressing this sector, the IRS has missed an opportunity to articulate a more reaching community benefit analysis of nonprofit organizations that reintegrates public policy doctrine principles into nonprofit law. This Comment posits that the IRS should seize the opportunity created by this emerging form of inequality to clarify important elements of the community benefit doctrine and reinvigorate the application of antidiscrimination principles in nonprofit legal enforcement.

Download Comment

By Sonia Marton

Unpaid caregiving is an enormous element of life for millions of Americans. But caregivers too often suffer discrimination in the paid workplace due to the real or perceived demands of their care work outside of it. Despite this inequality, employment antidiscrimination statutes do not protect caregivers explicitly. Instead, caregivers must demonstrate a connection to at least one expressly protected class to access antidiscrimination protection, usually by linking discrimination based on caregiving (unprotected) with discrimination based on sex (protected). As a result, equal employment opportunity (EEO) laws implicitly and explicitly reinforce the connection between being a woman in the workplace and being a caregiver outside of it. This state of affairs is both a driver and a manifestation of sex inequality because unpaid caregivers in this country are mostly women. This Comment offers a critical feminist analysis of how, why, and what could be done about it.

Specifically, this Comment advocates for explicit protections for caregivers as a class to help disentangle sex from caregiving and thereby help address sex inequality in the United States. Part I discusses the landscape of federal EEO laws and how it is insufficient for caregivers. Part II dives into the avenues that caregivers currently most often use to gain protection under the law. Part III showcases how broad and explicit protection for caregivers as caregivers can be successful.

Download Comment

By Mary Gianna Hill

The rise of Real-Time Crime Centers (RTCCs) in the United States, including their implementation in Pennsylvania, marks a significant development in law enforcement surveillance. These centers employ advanced technologies to conduct real-time monitoring of the public. While the primary aim of RTCCs is to enhance public safety, they also raise critical concerns about privacy rights and constitutional protections. Specifically, the use of pervasive surveillance technology by the Philadelphia Police Department (PPD) through its RTCC challenges the boundaries of the Fourth Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.

This Comment explores the constitutional implications of RTCC surveillance, arguing that the PPD’s use of this technology constitutes a search under both the Fourth Amendment and the Pennsylvania Constitution. By analyzing U.S. Supreme Court decisions on surveillance, as well as relevant Pennsylvania court rulings, this Comment advocates for enhanced judicial scrutiny of RTCCs, noting that while Pennsylvania’s Article I, Section 8 does not categorically exceed the protections of the Fourth Amendment, it offers particularly persuasive safeguards when it comes to real-time surveillance. The conclusion underscores the need for a balanced approach that respects both public safety and individual privacy in the digital age.

Download Comment

By Sabriyya Pate

The Alien Tort Statute (ATS), one of the United States’ oldest laws, provides all federal district courts with general jurisdiction to hear cases brought by non–United States citizens. As written, the ATS empowers non– United States citizens—including victims of torture, kidnapping, forced labor, and child slavery—to sue American individuals and corporations for the customary international law torts committed against them. Over the past two decades, however, the Supreme Court has cabined the ATS such that it is unworkable for the non–United States citizens it was designed to empower. Instead, the Court has contorted the ATS to grant itself greater power over foreign policy and global governance. Meanwhile, amidst our increasingly globalized economy, human rights abuses committed by American multinational corporations (MNCs) against non–United States citizens remain widespread. A revival of a robust interpretation of the ATS would preclude American MNCs from evading the United States judicial system when they commit human rights abuses abroad.

This Comment argues that unraveling the doctrinal fallacies saturating ATS jurisprudence is the first step toward reform. Contextualizing the recent settlement achieved in Doe v. ExxonMobil, this Comment argues that ATS doctrine has become a web of contortions that must be rectified before the Court further usurps foreign policymaking authority. It concludes by outlining a path for legislative action on the issue of human rights abuses committed against non–United States citizens by American corporate actors.

Download Comment

By Amanda McBain

A sharp rise in the filing of Americans with Disabilities Act (ADA) Title III actions between 2013 and 2021 has furthered the “for-profit” lore surrounding arguments against the standing of serial litigants. Critics have construed the mere propensity of ADA litigants to settle their lawsuits as the basis for a disingenuous narrative: serial litigants, often referred to as “testers,” are litigating spurious claims with the sole intent of financial gain.

In Acheson Hotels, LLC v. Laufer, the parties presented the Supreme Court with the question of whether an ADA “tester” has standing under Title III to bring an action against a hotel for its website’s lack of sufficient accessibility information, even if the tester never intended to become a guest. Stemming from a review of claims asserted in the amicus briefs filed in Acheson Hotels and Justice Thomas’ concurring opinion, this Comment analyzes and responds to the narrative that serial litigation is a “for-profit” industry propelled by fee-shifting statutes or settlements and dependent on “boilerplate allegations” that lack a proper injury-in-fact. Through an empirical analysis of complaints and the role of settlements in ADA actions, this Comment provides an answer to the myth surrounding serial litigation and assesses the proper intent of its litigants.

Download Comment

By Anaximander Mars

Following the 1993 bombing of the World Trade Center, Congress directed the U.S. Sentencing Commission to amend its Sentencing Guidelines to prescribe a steeper penalty for acts that involve or intend to promote international terrorism. The result is the terrorism sentencing enhancement, which automatically sets a floor of 210 to 262 months when calculating the recommended sentence for defendants before other adjustments. But this one-size-fits-all penalty, while appropriate for the worst offenders intending mass murder, sweeps too broadly and recommends severe sentences for any defendants accused of antigovernment conduct. Prosecutors request the terrorism enhancement not only for terrorists intending mass murder or bodily harm, but also for unruly protestors intending small-scale property damage and civil disobedience. This Comment proposes reforming the enhancement by implementing a tiered system that recommends sentencing adjustments for anti-government criminal conduct according to the offense type and the degree of intended or actual violence and property damage.

Download Comment