Current Commentaries

Winter 2023

A FELONY A DAY KEEPS THE DOCTOR AWAY

Kristen Reilly

The opioid crisis is a nationwide issue that has resulted in an increase in overdose deaths and a widespread addiction epidemic. The highly addictive qualities of opiates have landed them in the category of a “controlled substance” under the Controlled Substances Act. Both state and federal politicians and law enforcement agencies have grappled with the issue for decades, with little to show for it. Opiates were originally introduced in the medical field to treat acute pain but developed into a medicinal crutch. Subsequently, law enforcement agencies have begun to crack down on the legal, yet technically illegal distribution of opiates from physicians. The statutory construction of the Controlled Substances Act gives licensed physicians authorization to knowingly and intentionally distribute opiates, which would otherwise be illegal. However, as the epidemic has raged on and law enforcement agencies, presidential administrations, and state and local governments have zeroed in on prosecuting physicians, several questions have arisen as to the standard for establishing culpability. Courts have struggled to define several components of the Act, leading to confusion and ambiguity.

In 2022, the Supreme Court, ruled on a larger issue within the landscape of physician-defendant prosecution: the good faith defense. However, the holding not only furthered prosecutorial confusion, but only addressed a niche portion of the larger issue. This Commentary seeks to remedy that failure by both criticizing the Supreme Court’s holding and proposing a new statutory framework for the Act itself. This framework will focus on defining the ambiguous portions of the Act, such that physicians can avoid prosecution whilst providing the necessary care. Finally, considering the new statutory framework, this Commentary proposes adding the mens rea of “recklessness” to the Act’s preexisting statutory requirements.

Fall 2023

WHO MAY RECEIVE CHEVRON DEFERENCE—THE RESPONSIBLE AGENCY SECRETARY, THE U.S. ATTORNEY GENERAL, OR NO ONE?

Paul J. Larkin

Over the last few terms, the Supreme Court has clearly avoided relying on Chevron in what should have been classic cases for its application: ones where a statute had an uncertain meaning, and the agency responsible for implementing it had a clear understanding what the law meant. Moreover, the Court has demanded that agencies identify statutory authority that clearly authorizes its actions. An injunction to “do the right thing” is insufficient. Toward the end of the October Term 2022, the Court granted review in a case—Loper Bright Enterprises v. Raimondo—that allows the Court to overturn Chevron should it choose to do so. We should learn its fate during the Court’s upcoming term.

This Commentary explains why it is time to “retire” or reformulate the Chevron deference standard. To get there, Part II argues that there are statutes other than the APA that are relevant to this issue. Congress has granted the U.S. Attorney General the authority to decide what legal position the United States will advance in litigation, and that includes deciding what statutory interpretation best advances the federal government’s interests. Accordingly, the relevant positive law vests the Attorney General, not the secretary of the responsible agency, with the authority to identify the federal government’s legal position. Part III then explains that, under both the rationale of Chevron and the Court’s post-Chevron precedents, the Attorney General is not entitled to any deference for its interpretation of the law. Finally, Part IV submits that, under a revised interpretation of Chevron, an agency should receive respect for its judgment about how best to implement a statute, but only the same respect that a court would afford a scholar for his or her understanding of the optimal answer to a legal question. That much, but no more. In law school, the justices might have been taught the law of contracts by a sensei like Samuel Williston or Arthur Corbin, and they are entitled to treat the teachings of their hanchis with all the respect they have earned. But it remains a justice’s responsibility to resolve all legal issues de novo because that obligation comes with a black robe.

NEGATIVE ORIGINALISM

Jamie G. McWilliam

Originalism has been criticized for failing to provide a determinate meaning in every instance of interpretation. To these commentators, originalism is at best a flawed methodology in which diverging historical sources are inconsistently applied by judges and scholars who cannot even agree at what level of generality the original meaning should be viewed. Some even go so far as to argue that original meaning is, at worst, “illusory,” and “allows originalism to be turned into, in effect, a form of progressive and very much living constitutionalism.” In other words, they say originalism, which was spawned as a cogent theory to counter the Warren Court’s flexible use of the Constitution, is a fraud.

There are a few issues that scholars have raised with originalism, but in the end, each is a critique of originalism’s alleged failure to provide a noncontroversial outcome in every case. The first issue is that judges are generally not historians, and their use of history may be ill informed. Even when a historical analysis is well-performed, a lack of relevant data and historical disagreement over meaning make finding a concrete solution difficult. Where a source provides an answer, deciding to attribute one historical author’s view to the entire body that drafted the legal text raises additional concerns. At the end of this line of inquiry is the question of whether a unique original meaning can be ascertained from the evidence, or even whether such a meaning existed in the first place. If not, is originalism a failed method of interpretation?

This Commentary argues that these critiques miss the primary strength of originalism in practice: even where an originalist analysis fails to provide a determinate interpretation, it typically will further determine an underdetermined text. In other words, it will tell us what the legal text does not mean. 

 

Summer 2023

THE FUTURE OF CRIMINAL DEFENSE CONFLICTS: IDEOLOGICAL BIASES AND EFFECTIVE COUNSEL

Konnor Woodburn

Courts have long held that significant conflicts of interest can create both ethical and constitutional problems in the criminal context. They invoke major issues of effective assistance of counsel by making it difficult to determine whether the attorney is acting on behalf of their client or someone else. It follows that there should also be significant concern if the defense attorney is being paid to represent a client as part of an ideological or political group whose interests might not be the same as the individual who is on trial, even if that third party does not have a criminal interest in the proceedings. In a society where attorneys are taking clients merely to make a political statement, standards of ethics and competence must be even more explicit in prohibiting conflicts of interest. Simply put, a defense attorney should be severely restricted from accepting payments from third parties intent on pushing a specific message, especially when doing so would risk damaging their client’s chances of a favorable resolution to their criminal proceedings.

This Commentary explores the problems inherent in allowing third-party fee payments as part of pushing an overall message. Specifically, how these payments relate to effective representation in criminal proceedings. Part I will discuss Strickland v. Washington and the origin of effective assistance of counsel, as well as an analysis of third-party fee payments and conflicts of interest. Part II will continue with several modern examples of ideology and politics interfering with the role of a criminal defense attorney. This Part will also include the argument that third-party fee payments based on ideology or other means are outside the scope of professional conduct and should be curtailed except in extremely limited circumstances, with ineffective assistance claims and other remedies in place to deal with significant violations.

 

WHO IS THE REAL CRIMINAL? IMPOSING SPECIFIC CRIMINAL LIABILITY FOR POLICE MISCONDUCT IN FALSE CONFESSION CASES UNDER NEW YORK LAW

Anna Maria Giblin

False confessions, and subsequent wrongful convictions, present a serious problem in the criminal justice system as a whole, but especially in New York State. Since 1989, New York has ranked “third in the nation in confirmed wrongful convictions.” Furthermore, police-induced false confessions “are among the leading causes of wrongful convictions.”

This Commentary argues that New York should adopt a statute imposing specific criminal liability on police officers for intentionally, knowingly, recklessly, or negligently obtaining a false confession from an individual who is later wrongly convicted of and imprisoned for a crime for which the false confession was obtained. Part I provides background information on false confessions and the police misconduct that often give rise to them. It also analyzes current civil remedies for exonerees, arguing that an individual cannot fully achieve justice through compensation alone. Part II describes New York’s penal law, asserting that the interrogation tactics police routinely utilize to obtain false confessions do not fit neatly within the current definitions of official misconduct or obstruction of governmental administration. Part III lays out a legislative proposal that imposes specific criminal liability for obtaining a false confession in the first and second degrees. Part IV discusses the implications likely to arise from the proposal, anticipated objections to the proposal, and responses to those concerns.

 

Spring 2023

TOOLS OF THE TRADE: THE IMPACT OF NEW MECHANISMS OF THE ANTI-MONEY LAUNDERING ACT AND CORPORATE TRANSPARENCY ACT ON SANCTIONS ENFORCEMENT

Sarah Calderone

In recent years, Congress, the Executive Branch, commentators, and analysts have devoted substantial attention to the problems of corruption and money laundering through legislation, executive action, various reports, and published analyses. The time is right to focus on these issues. Although it is difficult to estimate the impact of financial crime on the economy and society more broadly, some estimates range up to $5.8 trillion.

In January 2021, the United States Congress passed the Anti-Money Laundering Act (“AMLA”) of 2020 and Corporate Transparency Act (“CTA”) as part of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2021. The respective purposes of the Acts are to expand anti-money laundering enforcement capabilities and establish beneficial ownership reporting requirements with the objective of improving corporate transparency. Describing the legislation as some of the most significant for regulating financial flows since the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“PATRIOT Act”) of 2001, commentators have suggested that these tools will have significant effects on foreign and other criminal investigations.

Sanctions imposition and enforcement have historically aligned with the development of anti-money laundering concepts and tools. The Financial Crimes Enforcement Network (“FinCEN”) describes money laundering as “disguising financial assets so they can be used without detection of the illegal activity that produced them,” thus “transform[ing] the monetary proceeds derived from criminal activity into funds with an apparently legal source.” Such criminal activity may include sanctions evasion—which involves the laundering of money to “sanctioned entities, to sanctioned jurisdictions and/or for the purchase of sanctioned goods”— through the use of shell companies, trade finance vehicles, and correspondent banking. These actions can lead to violations by criminal individuals, groups who intentionally evade sanctions, and financial institutions that unintentionally facilitate the activity.

In fact, the recent events around the war in Ukraine—from earlier sanctions imposed in the wake of the 2014 annexation of Crimea, to the more severe actions taken after Russia’s overt invasion in February 2022—demonstrate how anti-money laundering and sanctions go hand in hand. Gaps in sanctions coverage that allow financial flows to circumvent those programs contribute to inefficiencies in meeting the objective of sanctions, which is to change the behavior that brought about the measures. These inefficiencies demonstrate the importance of sanctions being backed by robust anti-money laundering measures. However, legislative efforts in anti-money laundering and sanctions regimes are siloed, making investigation, enforcement, and litigation on related issues less than straightforward, despite the close relationship of the two areas.

Considering this connection between money laundering and sanctions evasion, AMLA and CTA—while providing new and useful tools for monitoring and controlling financial flows—have the potential to fall short of legislative goals in two ways: first, in failing to explicitly connect the area of anti-money laundering mechanisms with other related areas of law, like sanctions enforcement; and second, in failing to unambiguously address the transnational nature of money laundering activities. Clear coordination with sanctions enforcement as well as a transnational approach are necessary, not only for the most effective implementation of this legislation, but also for policy reasons if the U.S. government seeks to bring issues of financial crime and money laundering within national security interests.

This Commentary discusses the effectiveness of additional enforcement authorities under AMLA and transparency requirements under CTA for the purposes of deterring and punishing sanctions violations. It considers the development of U.S. anti-money laundering law over time, as well as how the Acts add to the legal toolkit. It also evaluates court enforcement of sanctions violations under existing legislation and analyzes the potential impact of these acts on future enforcement. Finally, it addresses the policy implications of a national security approach to anti-money laundering for government stakeholders, corporate entities subject to the new legislation, and lawyers who, as of now, remain largely unregulated in this area. Not only do the Acts feature provisions that give transnational effect to anti-money laundering measures—which is required given the nature of the activity—but, alongside cases that bring together anti-money laundering and sanctions violations, these tools of the trade may also assist in harmonizing these areas. Addressing their siloed relationship will have important effects for the U.S. government’s national security approach to anti-corruption as well as government, corporate, and legal stakeholders.

 

THE IMPACT OF RECENT LEGISLATIVE AND JUDICIAL ACTIONS ON THE FUTURE OF WEBSITE ACCESSIBILITY

Connor Bradley

Individuals have increasingly relied on the internet to complete many of their daily activities. However, with the internet’s rise in importance, there has been a proliferation of accessibility issues. Many individuals with intellectual and physical disabilities are unable to use critical websites and technologies and, consequently, experience widespread exclusion.

Title III of the Americans with Disabilities Act (“ADA”) has proven an important avenue of relief. From 2017 to 2021, the number of website accessibility cases filed in federal court increased from 814 to 2,895. Predatory lawsuits—where a few individuals file numerous lawsuits—have predominated Title III litigation and drawn much criticism, especially from businesses.

Both the judicial and legislative branches have attempted to find a solution. Gil v. Winn-Dixie Stores, Inc., eventually vacated as moot, drastically changed an existing circuit split by introducing the intangible barrier standard, which effectively granted businesses greater latitude to discriminate against individuals with disabilities. The Online Accessibility Act (“OAA”), which lapsed with the expiration of the 2021-2022 congressional term, attempted to clearly articulate standards for website compliance. While both on the surface appear harmful to individuals with disabilities, Gil and the OAA illustrate an encouraging evolution toward a more uniform and clear system of internet compliance that will ultimately improve accessibility.

Part I of this Commentary details the current circuit split. Part II explains the intangible barrier standard and Gil v. Winn-Dixie Stores Inc. Part III outlines the provisions of the OAA and its criticisms. Part IV explains the lasting impacts of Gil and the OAA, while Part V outlines suggestions for future legislation to improve website accessibility, such as (1) committing to one compliance standard, (2) shortening the notice and cure period, and (3) delegating rulemaking and enforcement responsibilities to either the U.S. Access Board or the Department of Justice.

 

Winter 2023

AVOIDING A SERIOUS AND SUBSTANTIVE ERROR: THE NEED AND SUPPORT FOR A UNIFORM DEFINITION OF CONTROLLED SUBSTANCES WHEN APPLYING CAREER OFFENDER ENHANCEMENTS

Zachary Aboff

The United States Sentencing Guidelines (“Sentencing Guidelines”) were developed for the sake of promoting uniformity in sentencing based on the type of offense committed and the defendant’s criminal history. In line with this second factor, the United States Sentencing Commission implemented career offender enhancements that impose punitive penalties to deter repeat offenses. Career offender enhancements are some of the most punishing penalties applied under federal sentencing guidelines because they elevate the defendant’s criminal history rating to Category VI. This criminal history category is the highest available and, in some cases, may nearly quadruple the sentencing guideline range. Even when a judge decides on a substantial downward departure from the Guidelines, the sentence may still be higher than it would be if a career offender enhancement was not applied. The imposition of sentences significantly beyond the recommended Sentencing Guidelines affects the substantial rights of defendants because it imposes additional time in prison—the most egregious of errors.

However, this loss of legal rights and freedoms is not the only consequence for prisoners sentenced to career offender enhancements and, arguably, is not even the most damaging. Prisoners returning from extended sentences are less likely to reenter society effectively, as their lack of experience with technological and cultural developments make it difficult to manage even bare necessities. Career offenders are also at greater risk of permanently severing ties with friends and family, which makes reentry into society far more difficult. Incarcerated individuals bear these deeply personal consequences, while scholars remain skeptical that long prison sentences have a meaningful impact on public safety. As such, it is critical that the courts—for the sake of judicial efficacy, effective justice, and the very wellbeing of the incarcerated—apply correct sentencing guidelines ranges.

The career offender enhancement provision, found in section 4B1.1 of the United States Sentencing Guidelines Manual, provides that career offender penalties may be imposed if three elements are satisfied: (1) the defendant was at least eighteen years old at the time he or she committed the instant offense; (2) the instant offense of conviction is a felony involving a “crime of violence” or “controlled substance offense;” and (3) the defendant has been convicted of two or more prior “crime[s] of violence” and/or “controlled substance offense[s].” Section 4B1.2(b) defines the phrase “controlled substance offense” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance.” No definition for “controlled substance” is provided, leading to a circuit split over whether it refers to the federal Controlled Substances Act (“CSA”) or federal and state Controlled Substances Acts, which may be more expansive and can vary significantly. As a result, enhancements under section 4B1.1 are often misapplied.

Though state CSAs often mirror the federal statute, all fifty states have their own CSAs that allow them to address local narcotics issues. This distribution is significant for those with prior marijuana offenses given the renewed drive by a number of congresspeople to remove marijuana from the federal CSA.

The approach adopted by the Second, Fifth, and Ninth Circuits, which takes the definition of controlled substance from the federal CSA, should be adopted by the rest of the federal courts. This interpretation both aligns with existing jurisprudence and imposes on convicted defendants a more uniform and equitable sentence. Part I of this commentary will discuss background on earlier case law addressing how to analyze predicate offenses and introduce the current circuit split in greater detail. Part II will discuss variations among the different state CSAs and explain why principles of federalism are not violated by adopting the federal approach. Part III will examine other areas of federal law and federal sentencing guidelines that have also addressed the question of whether state and federal or strictly federal definitions apply when considering what counts as a predicate offense. Part IV will explore the affirmative steps that could be taken to clarify the definition of a controlled substance.


Fall 2022

BRNOVICH V. DEMOCRATIC NATIONAL COMMITTEE: SAME STORY, NEW SECTION

Joseph Adams

After historic voter turnout rates in the 2020 elections, state legislatures across the country ushered in a wave of voter suppression laws. From January 1, 2021, to September 27, 2021, nineteen states passed at least thirty-three restrictive voting laws, limiting access to the ballot box in a multitude of ways. It is not an uncommon trend. Since 2013, after the United States Supreme Court rendered Section 5 of the Voting Rights Act (“VRA”) of 1965 inoperable in Shelby County v. Holder, states have been able to reengage in legislative efforts to limit minority access to voting. As a result, many commentators observed that Section 2 was the only provision of the VRA that could provide a substantive check on discriminatory voting laws.

Section 2’s broad prohibition on “voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups” had been primarily utilized in vote dilution claims. Without the protections of Section 5, however, the provision was regarded as the only tool left in the VRA for vote denial claims. But, in Brnovich v. Democratic National Committee, the Supreme Court’s Republican-appointed majority dealt another blow to the VRA by imposing new “guideposts” for courts to follow when evaluating Section 2 claims. The guideposts articulated by Justice Alito significantly heighten a plaintiff’s evidentiary burden while also lowering the state’s burden to show a compelling interest to restrict voting opportunities. By crafting the extratextual guideposts framework for Section 2 claims, the Supreme Court’s decision in Brnovich, and Republican lawmakers’ subsequent efforts to block legislation that would restore the section, represents another chapter in the saga of Republican-appointed Justices narrowing voter protections and Republican lawmakers blocking voting rights legislation due to misplaced fears of voter fraud.

WHY GEORGIA’S VOTING RIGHTS LEGISLATION VIOLATES THE FIRST AMENDMENT

Aaliyah Milson

Voting rights jurisprudence in the United States has faced substantial changes since the adoption of the original Constitution, when only white male property owners could vote. The Constitution does not explicitly provide protection of the right to vote. Hence, Black and other minority voters had been denied the right to vote, and once they were allowed to vote, they faced restrictions in voting. Even with the passage of the Fourteenth and Fifteenth Amendments of the Constitution, Black voters still faced disenfranchisement. It was not until the passage of the Voting Rights Act of 1965 that notable progress in Black voter participation began to develop.

Yet, this development has not stopped legislators and other state actors from introducing restrictive voting rights bills. At issue in this commentary is Georgia’s recently enacted statute known as the Election Integrity Act of 2021 (“SB202”). The Department of Justice has filed a complaint against the State of Georgia, alleging that the law is racially discriminatory and violates Section 2 of the Voting Rights Act, Section 10301 of Title 52 of the U.S. Code, and the Fourteenth and Fifteenth Amendments of the United States Constitution.

This commentary seeks to explore the possibility of challenging SB202 under the First Amendment Freedom of Speech Clause. While the complaint brought by the Justice Department has merit, it was a missed opportunity to have the Court determine that voting is speech. If the Court were to hold that voting constitutes free speech, then it would follow that restrictive voting legislation violates the First Amendment. This commentary will argue that although the Court has never held that voting constitutes speech, the Court has left the door open through its decisions, for example in Buckley v. Valeo, that this is possible.