Faithful Unions

Rebecca Aviel

Volume 69, Issue 3, 721-769

We live in a moment of intense preoccupation with both marriage and federalism, one that is likely to persist well beyond the Supreme Court’s ruling in Obergefell v. Hodges. The decision served to reify marriage as a site of enormous cultural significance, an appropriate institution within which to fight over social meaning and its reflection in law. These battles are fought state by state, against a backdrop of unprecedented geographic mobility, raising profound questions not only about how states relate to their own citizens, but how states relate to each other. If it is true that states have an interest in marriages they have created, an idea often invoked but less frequently examined, then interstate marriage recognition is a matter not only of individual rights but also of state sovereignty. Yet the Full Faith and Credit Clause, the constitutional command that is seemingly most suited to managing marriage federalism, has never been called into action.

This Article first suggests that this warrants explanation and then endeavors to provide one. It offers an account of contingent doctrinal evolution, demonstrating that the work the Clause might do in regulating interstate marriage recognition has so far been done by other doctrines. But it also explains why the Clause might nonetheless be useful for the marriage controversies of the future. The anti-animus principles that drove marriage equality forward are highly dynamic; they reflect and respond to social change in an iterative process that is neither linear, nor predictable, nor instantaneous. While this unfolds for any given marriage controversy, over a period that might take decades, we would advance our commitment to faithful unionsboth marital and nationalby developing an interstate recognition scheme with constitutional parameters.

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Booker Disparity and Data-Driven Sentencing

Joshua M. Divine

Volume 69, Issue 3, 771-834

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as other judges on the same court, so a defendant’s sentence often depends substantially on which judge is randomly assigned to the defendant’s case. The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity. The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effects of the old regime diminish.

This Article proposes a systemdata-driven appellate reviewto curb sentencing disparity without re-introducing unwarranted uniformity. In a system where sentencing judges possess significant discretion, only meaningful appellate review can restrain the tendency for sentencing practices to deviate substantially between judges. Discretionary sentencing decisions are currently reviewed for abuse of discretion, which leads some judges to issue much harsher or much more lenient sentences than other judges. Congress can mitigate this problem of inter-judge disparity by changing the standard of review, creating a rebuttable presumption that outlier sentences among similar offenders are unreasonable. The data the U.S. Sentencing Commission collects on over 70,000 criminal cases annually can be used to define categories of similar offenders. Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges, restricting inter-judge disparity without incurring unwarranted uniformity.

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Reconsidering the Merger Process: Approval Patterns, Timeline, and Shareholders’ Role

Matteo Gatti

Volume 69, Issue 3, 835-924

Shareholder approval in mergers generally takes a long time, but is it necessary? This Article finds that in the context of mergers, the approval requirement is not nearly as valuable a procedure as we might expect. I analyze shareholder approval patterns (target side) in all domestic mergers with a Russell 3000 target company in the 2006–2015 period. By examining data on voting outcomes, I note shareholders rejected a very low number of mergers, which generally passed with significantly high approval percentages. Instead of concluding that voting is mere rubber-stamping by shareholders, voting positively affects mergers through the expectation that shareholders will turn down undesirable deals. The voting requirement signals a credible threat to corporate planners that such deals will be rejected; as a result, they are in fact rarely presented to shareholders in the first place (deal filtering effect of voting). The same dynamic contributes to higher premiums than we would have experienced if a threat of rejection were absent (premium effect of voting). However, the data also shows that voting comes with drawbacks, the most significant being the delay in deal completion, which can jeopardize a company’s operations and put deal certainty at risk. If the beneficial role of shareholder voice in mergers stems from the pressure on corporate planners generated by the credible threat of rejection embedded in the vote, I suggest alternative ways to exert such pressure without incurring all the costs currently involved with voting. To that end, this Article sketches three possible policy solutions, ranging from impactful (vote-on-demand and randomized approval, both to be opted into by companies in lieu of the current voting regime) to more moderate (speeding up the timetable by revising the SEC review process of merger securities filings and state corporate laws). 

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How the Animal Welfare Act Harms Animals

Justin Marceau

Volume 69, Issue 3, 925-960

The fiftieth anniversary of the Animal Welfare Act (“AWA”) was 2016. Most fiftieth anniversaries are cause for great celebration, but this one shouldn’t’ be because the AWA has caused more harm than good. In previous decades a wide range of sources have praised the Animal Welfare Act as a critical and noteworthy national legislative achievement that protects animals across the country. This Article, by contrast, demonstrates that animal protection efforts are affirmatively hindered by the AWA in both concrete, tangible applications and in a variety of more conceptual ways. Animal industries continually deploy the fact of an AWA license as an obstacle to transparency about the suffering of confined animals, as a soundbite in the media to quell public concern, and even as a basis for defamation and related litigation against animal protection groups who criticize the treatment of confined animals. In sum, the AWA’s prominence paired with its meagerness has set the stage for a powerful dualitythe AWA is invoked as the centerpiece, even the exclusive source of restrictions on the treatment of many animals, but the protections it provides are actually quite few and almost never enforced. The very existence of the AWA reinforces norms that exacerbate animal suffering. 

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Legalizing Marijuana: A View from Among the Weeds

Michael Vitiello & Rosemary Deck

Volume 69, Issue 3, 961-984

The United States is on a fast-track to a new era in marijuana law. The prospect of a federal pathway to legalization opens a Pandora’s Box of issues for states like California. This Article focuses on Humboldt County in the Emerald Triangle, California’s prime marijuana growing area, and examines how the region might be impacted by state legalization. After a brief look into the development of the marijuana market in Humboldt County, this Article identifies some of the costs that have come with leaving the county outside the legal fold, including a failure to address poor working conditions for seasonal trimmers and an epidemic of sexual harassment that has only recently come to light. The Article then explores some of the obstacles to bringing the county into the legal economy. Depending on how policymakers and marijuana producers respond to these issues, Humboldt County may become a boom-or-bust economy. The Article then examines some of the benefits of bringing producers into the legal economy, including improved working conditions for the scores of individuals employed in the industry. Failing to bring the county into compliance with county and state cannabis regulations also threatens the goals of marijuana reformers. The Article concludes with thoughts about how Humboldt County might fare in the new world of legal pot. Just as in the wine industry, the region’s best hope may lie in the move towards marijuana appellations, which will require entry into the legal market.

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Neither Here nor There: The Bisexual Struggle for American Asylum

Jaclyn Gross

Volume 69, Volume 3, 985-1008

Recently, it has become increasingly difficult for foreign nationals to successfully gain refuge in the United States from persecution in their home countries. The year 1990 marked the first time that the United States granted asylum to a homosexual claimant on the grounds of membership in a “particular social group.” Since then, several LGBTI asylum seekers have been granted the right to build new lives in the United States. Most recently, the country has increasingly included the transgender community in this group of fortunate individuals. Bisexuals, however, despite comprising over fifty percent of the LGBTI population, continue to be a significant subset of the community that consistently faces the most difficulty in attaining asylum in the United States. Asylum seekers who are discriminated against based on visible traits face far fewer roadblocks than those attempting to prove persecution for not being heterosexual.

There are fundamental societal misunderstandings about bisexuality and its presence in everyday life, and the judiciary suffers from a lack of targeted training that could help overcome this deficiency. Accordingly, the judiciary must take steps to prevent these deficiencies from resulting in stereotypes and inaccurate credibility determinations that may ultimately act as a bar to asylum. This Note proposes that all judges making asylum determinations be subject to a training program comparable to that of the LGBTI-specific module required by United States Citizenship and Immigration Services for Refugee, Asylum and International Operations officials. With this training, the personal biases of decisionmakers that lead to skepticism of a claimant’s credibility can be reduced, thus avoiding miscategorizations of individuals who stray from perceived gender or sexual binaries.

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Bringing Untested Rape Kits out of Storage and into the Courtroom: Encouraging the Creation of Public-Private Partnerships to Eliminate the Rape Kit Backlog

Gaby Lion

Volume 69, Volume 3, 1009-1038

This Note discusses the current status of the rape kit backlog, and how it can be addressed through successful public-private partnerships in the DNA testing industry. DNA evidence contained inside rape kits is an invaluable investigative tool to solve and prevent crime. Despite their immense utility, rape kits remain untested due to overburdened public crime labs with insufficient resources. On top of this, onerous FBI regulations prevent private crime labs from joining forces with public labs to test these kits. The aim of this Note is to shine a light on-and to introduce initiatives to eliminate-the backlog of hundreds of thousands of untested rape kits in the United States.

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Bisecting American Islam? Divide, Conquer, and Counter-Radicalization

Khaled A. Beydoun

Volume 69, Issue 2, 429-497

The United States Department of State has long employed a sectarian foreign policy strategy to advance its interests in the Mideast. The United States has sided staunchly with Saudi Arabia, the Sunni Muslim superpower in the region, while spurning Iran, the Shia Muslim hegemon that emerged in 1979 after the Islamic Revolution.

This sectarian strategy reaped great benefit in the form of exclusive rights over Saudi oil and staving off Soviet influence in the Mideast. But the State Department’s unwavering allegiance to Saudi Arabia today exposes it to foreign attacks and “homegrown radicalization” inspired by terror networks driven by Wahhabism, the extremist Sunni ideology enshrined by its longtime ally. Through its historic at-all-costs support of Saudi Arabia, the U.S. has facilitated the spread of an ideology that spawned Al Qaeda, which coordinated the 9/11 terror attacks; and most recently, the Islamic State of Iraq and Syria (“ISIS”)the terror network that inspires extremism.

Because of its link to Al Qaeda and ISIS, the United States Department of Homeland Security (“DHS”) theorizes ISIS radicalization to be a distinctly “Sunni phenomenon.” This isolates Shia Muslims, who are systematically targeted and executed by ISIS in the Mideast, as natural allies that could advance counter-radicalization strategy against a common enemy. Which begs the question: what if DHS used the same divide-and-conquer approach here at home?

This Article investigates the budding sectarian strategy employed by DHS to advance its counter-radicalization program, and theorizes how prevailing sectarian tension within Muslim communities facilitates this strategy. In addition to integrating the historic and theological divisions between Sunni and Shia Muslims into legal literature, this Article: first, examines how increased polarization between Shia and Sunni Muslims facilitates DHS’s ability to recruit the former to monitor the latter; and second, how a sectarian counter-radicalization strategy makes the State an active participant in exacerbating sectarian tension among Muslim Americans, which raises First Amendment Establishment Clause concerns.

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Are U.S. Public Lands Unconstitutional?

John D. Leshy

Volume 69, Issue 2, 499-582

Arguments are sometimes mademost recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.

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Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform

Lydia Nussbaum

Volume 69, Issue 2, 583-646

Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the “School-to-Prison Pipeline.”

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute restorative justice as a disciplinary alternative. But, as this Article argues, the resulting legal directives are flawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to account for the ambiguity inherent to restorative justice and to provide clear instructions on how to “build” a restorative school. With the aim of advancing school discipline reform and ending the School-to-Prison Pipeline, this Article employs jurisprudential theory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionable policy.

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It’s Always Windy in McCain Valley: Vicarious Liability Under the Migratory Bird Treaty Act

George A. Croton

Volume 69, Issue 2, 647-674

This Note considers whether a federal agency that grants a license, lease, or permit to a wind farm developer can thereafter be held vicariously liable for the developer’s violations of the Migratory Bird Treaty Act’s (“MBTA”) “take provisions.” It concludes by positing that a federal agency can justifiably and logically be held vicariously liable in situations where the violation was both foreseeable and inevitable.

Part I provides background to the question, discussing a recent circuit split over the question, the interplay of the MBTA and the Administrative Procedure Act, and an older circuit split over the meaning of the word “take” as applied to the MBTA. Part II frames the various arguments made in the two cases that resulted in the recent circuit split over the potential for federal agency vicarious liability. Part III analyzes the text, history, and purpose of the MBTA; compares the issue of MBTA vicarious liability to a similar and instructive line of cases arising under the Endangered Species Act; and presents an argument for a “middle ground,” where federal agencies can be held vicariously liable for not securing a take permit in scenarios where the developer they are licensing will inevitably commit a violation of the MBTA.

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Royalty Inequity: Why Music Streaming Services Should Switch to a Per-Subscriber Model

Joseph Dimont

Volume 69, Issue 2, 675-700

Digital music streaming services, like Spotify, Apple Music, and Tidal, currently distribute royalties based on a per-stream model, known as service-centric licensing, while at the same time receive income through subscription fees and advertising revenue. This results in a cross-subsidization between low streaming users and high streaming users, streaming fraud, and a fundamental inequity between the number of subscribers an artist may attract to a service compared to how much they are compensated. Instead, streaming services should distribute royalties by taking each user’s subscription fee and dividing it pro rata based on what the specific user is listening toknown as a subscriber-share modelor user-centric licensing. Many scholars have focused on creating a minimum royalty rate; however, this does little to solve the inherent inequity.

Either the music industry should self-regulate by switching to a subscriber-centric model, or the Copyright Royalty Board should make the switch for them. Under a subscriber-centric model, royalty distribution would more accurately reward artists for generating fans, not streams. Each month, the streaming service should take each subscription fee and apportion it out based on the percentages of artists that unique listeners choose to listen to during the subscription period. This change could come through the industry itself, litigation, or regulation, but will likely face resistance from the major record labels and the services themselves.

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