2017, Vol. 111, No. 3
The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—as if developments in each doctrinal setting can be siloed. This Article rejects that approach, beginning with its underlying premise. Using contemporary examples, we demonstrate how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. This intervention provides a far more accurate rendering of how immigration exceptionalism translates into practice. By simultaneously accounting for rights, federalism, and separation of powers, our model captures a set of normative tradeoffs that context-specific appraisals have dangerously missed. For better and worse, the doctrines of immigration exceptionalism can operate very differently in combination than they do in isolation. Moreover, our expanded frame offers new insights on controversies arising at the intersection of constitutional dimensions, including the recent landmarks of United States v. Texas, Arizona v. United States, and President Trump’s executive orders issued in his first few weeks in office. Indeed, the transition between Presidents with drastically different views on immigration crystallizes the types of tradeoffs the Article highlights.
While the law governing the electoral process has changed dramatically in the past decade, one thing has stayed the same: Courts and commentators continue to view voting in elections and spending on elections through distinct constitutional lenses. On the spending side, First Amendment principles guide judicial analysis, and recent decisions have been strongly deregulatory. On the voting side, courts rely on a makeshift equal protection-oriented framework, and they have tended to be more accepting of regulation. Key voting and spending precedents seldom cite each other. Similarly, election law scholars typically address voting and spending in isolation.
This Article challenges the prevailing, bifurcated approach to voting and spending law. It maintains that the law’s disparate handling of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process. Conceiving them as two aspects of a broader right to participate—a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC—offers a principled basis to harmonize voting and spending law and reorient election law discourse.
Notes & Comments
Since the Supreme Court decision Burlington Northern & Santa Fe Railway Co. v. United States, courts have wrestled with what it means to be an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). One aspect of arranger liability that has undergone radical change in the past decade is the useful product doctrine, which allows a party to escape arranger liability by proving it was selling a useful product rather than arranging for disposal.
Prior to Burlington Northern, courts applied the useful product doctrine restrictively, only allowing parties selling virgin products to escape liability and imposing liability on parties selling useful secondary products. Following Burlington Northern, this shifted, with courts requiring concrete evidence of intent in arrangements for disposal and allowing parties selling secondary products to escape liability even when their actions directly contributed to environmental contamination.
This Note argues that this shift in the useful product doctrine will negatively impact the Superfund litigation landscape, and more importantly, the environment. This Note also posits that the shift in the useful product doctrine can be correlated to a shift in administrative law, away from deferring to agency decisions and towards a more searching judicial inquiry. This Note argues that the courts should scale back their permissive approach to the useful product doctrine and give greater weight to agency expertise and agency liability determinations when ruling on arranger liability cases in the useful product arena.
Stripping Agency from Top to Bottom: The Need for a Sentencing Guideline Safety Valve for Bottoms Prosecuted Under the Federal Sex Trafficking Statutes
In domestic sex trafficking, the trafficker often promotes a victim to the coveted position of “lead prostitute,” or “bottom.” Once in this position, the victim engages in acts for which she can be prosecuted under federal sex trafficking statutes that carry ten- and fifteen-year mandatory minimum sentences. To recognize bottoms’ victimization and resulting lack of genuine agency, this Note proposes a Sentencing Guideline safety valve provision. Creating a safety valve would provide sentencing judges with necessary discretion to impose sentences below statutory floors in appropriate cases.
Nobody’s Stock Compares to Your Own: How Treasury Can Revive Stock Compensation in Cost-Sharing Agreements
In Altera Corp. v. Commissioner, the United States Tax Court invalidated a 2003 Treasury Regulation for failing to meet State Farm’s reasoned decisionmaking standard under the Administrative Procedure Act (APA). Invalidating this specific regulation eliminates one of the federal government’s latest attempts to limit income tax avoidance by some of the world’s largest and wealthiest corporations in the murky world of transfer pricing. This Note demonstrates that the Tax Court’s ruling must be limited to its specific APA holding and argues that Treasury may enact a similar regulation under the existing statutory and regulatory framework of the arm’s length standard.
Under the APA, Treasury must respond to all significant comments and provide a reasonable statement of basis and purpose for a new regulation. This Note offers viable responses to the public comments Treasury (apparently) inadequately addressed and proposes a framework for a statement of basis and purpose that would satisfy State Farm’s reasoned decisionmaking standard under the APA. These responses demonstrate that sharing employee compensation expenses indexed to a corporation’s stock price is not comparable between related and unrelated parties because they have inherently different risks. Therefore, while Treasury failed to respond to comments that provided evidence that unrelated parties do not share stock-based compensation, a finding that determined the outcome in Altera, it does not follow that requiring unrelated parties to share stock-based compensation violates the overarching arm’s length standard. Finally, this Note proposes that if Treasury can provide evidence that related companies share a smaller percentage of total employee compensation relative to unrelated companies in similar arrangements, such a regulation is consistent with the arm’s length standard. This regulation would be consistent with the standard because it creates transaction results that are “consistent with the results that would have been realized if uncontrolled taxpayers had engaged in the same transaction,” and achieves the purpose of Internal Revenue Code § 482.
Seeing’s Insight: Toward a Visual Substantial Similarity Test for Copyright Infringement of Pictorial, Graphic, and Sculptural Works
Before imposing liability for copyright infringement, a court analyzes whether the defendant’s allegedly infringing work is substantially similar to the copyright-holder plaintiff’s allegedly infringed work. This substantial similarity analysis broadly contains two steps. First, facts and ideas do not receive copyright protection and are filtered out. Second, the two works are compared to see if there is material overlap between the two works’ remaining creative expression—i.e., whether or not the two works are substantially similar. This two-step approach furthers the delicate dual goal of copyright law to keep ideas and facts freely available as raw material for creation while awarding an author copyright over particular creative expression.
While this substantial similarity test is noncontroversial, drawing the elusive line between idea and expression has been challenging for the courts. This task is especially difficult in the context of pictorial, graphic, and sculptural (PGS) works. The substantial similarity test evolved largely in the context of literary works and is not perfectly transposable to PGS works. Courts have resorted to two pernicious tendencies in applying the substantial similarity test to PGS works. They have used either what this Note calls a “literal descriptive approach,” comparing identifiable objects across visual works, or a “myopic visual approach,” comparing abstract visual components such as colors and shapes across visual works. Both of these tendencies fail to approximate how human vision works. Instead of identifying objects first or seeing shapes and colors in isolation, visual experience is initially nonverbal and inherently contextual. A substantial similarity test divorced from visual perception may erroneously draw the line between copyright protection and no protection, deviating from the idea–expression divide.
Drawing on the science of visual perception and the nature of artistic training, this Note proposes an alternate framework for substantial similarity analysis of PGS works. In this truly visual substantial similarity test, the first filtration step would sieve out what this Note calls “perceptual facts” often reflected in artistic techniques. Visual works would then be compared in terms of how perceptual facts were combined to form an aesthetic, visual composition. This approach correctly conceptualizes the visual idea–expression divide and therefore allows meaningful protection for copyright holders without removing raw material for creativity from subsequent creators.
This Essay conceptualizes the Flint water crisis as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.