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.

Full Article

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.

Full Article

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.

Full Article

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.

Full Article

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.

Full Article

No Harm, Still Foul: When an Injury-in-fact Materializes in a Consumer Data Breach

Benjamin C. West

Volume 69, Issue 2, 701-720

In the consumer data breach context, courts have seemingly limited a plaintiff’s ability to bring suit by applying the standing doctrine’s injury-in-fact requirement too rigidly. This is unacceptable, as the law of standing should not leave consumers without technology, without security, and without recourse. This Note challenges how courts currently apply the injury-in-fact element in consumer data breach actions, and proposes a new standard that better understands and considers previously overlooked harms that are incurred upon a breach.

This Note proceeds in four parts. Part I describes how courts currently approach standing in consumer data breach actions. Part II illuminates a plethora of real harms that current approaches fail to consider. Part III addresses foreseeable counterarguments. Lastly, Part IV urges courts to consider reforming current approaches by stressing how a better understanding of what constitutes a sufficient harm will ultimately provide adequate recourse to harmed consumers.

Full Article