Navigating Paroline's Wake

Over the last six years, courts have struggled with the challenge of calculating criminal restitution in child pornography cases. At the heart of this struggle has been the statute mandating restitution, 18 U.S.C. § 2259, which requires courts to simultaneously grant restitution for the “full amount” of a victim’s losses and limit this award to those losses “proximately caused” by the defendant. Faced with navigating this ambiguity in the context of child pornography, when a single defendant may be one of thousands of fellow distributors and possessors harming the victim, courts have awarded restitution in a wide range of amounts, from tens to millions of dollars, using inconsistent methodology or none at all. The Supreme Court’s decision in Paroline v. United States tried to provide the courts relief by clarifying the meaning of § 2259 and offering practical guidance on how to calculate restitution. But the Court’s attempt at making § 2259 workable has failed. In the first empirical analysis of the child pornography restitution issue, this Article uses sentencing data from thousands of cases to show that, even in Paroline’s wake, the restitution system fails to achieve its compensatory, punitive, and victim-affirming purposes. Most of today’s victims continue to receive no restitution at all. Moreover, most courts deciding to award restitution continue to order defendants to pay low-level amounts that are neither calibrated to offense-specific characteristics nor informed by any consistent methodology. As a result, the system causes a number of secondary harms to victims who choose to request restitution, while offering no support to the majority of victims who decline to do so. The system is therefore ripe for legislative overhaul, but Congress’s current proposal to amend § 2259 does little to make it any more practical for courts, fair to defendants, or therapeutic for victims. Drawing on its empirical findings, this Article suggests replacing the current system with a victim reimbursement fund that would better achieve the purposes of restitution. The fund would reimburse victims regardless of their participation in the justice system and would derive its contributions from defendants using reasonable, evidence-based baseline amounts and enhancement criteria that meaningfully distinguish between modern child pornography offenses.

Regional Federal Administration

Conventional accounts of federalism and administrative law generally assume that the federal government is highly centralized in Washington, D.C. Judges, politicians, and academic commentators often speak of “bureaucrats in Washington,” and they often contrast the poor governance supposedly provided by those bureaucrats with more responsive, innovative, and democratically legitimate governance from states and municipalities. Beyond pejorative rhetoric, assumptions about federal centralization also lead to a variety of widely accepted policy prescriptions.

This Article questions that conventional wisdom. Using a detailed study of the U.S. Army Corps of Engineers’ regulatory program, it demonstrates that geographic decentralization within the federal government is a real and important phenomenon, with implications cutting across the fields of federalism and administrative law. Federal decentralization undercuts conventional wisdom about the relative advantages and disadvantages of state (or local) and federal governance. It offers nuance to theories explaining how a federalist system actually functions. And it offers new possibilities for policy reforms designed to promote innovative, responsive governance.

Exhausting Patents

A bedrock principle of patent law—patent exhaustion—proclaims that an authorized sale of a patented article exhausts the patentee’s rights with respect to the article sold. Over one hundred and fifty years of case law, however, has produced two conflicting notions of patent exhaustion, one considering exhaustion to be mandatory regardless of whether the patentee subjects the sale to express patent restrictions, and another treating exhaustion as a default rule that applies only in unconditional sales. The uncertainty surrounding the patent exhaustion doctrine casts a significant legal cloud over patent licensing practices in the modern economy and has emerged as a central subject in scholarly debate on the nature and scope of intellectual property rights.

This Article takes a normative approach to patent exhaustion and argues that the correct exhaustion rule should be a “default-plus” rule that combines a default-rule component with a patent misuse test that is independent of the exhaustion analysis. The default-rule component would allow patentees to avoid exhaustion through express patent restrictions, while the patent misuse test would ensure that such restrictions do not violate public policy. This Article contends that this default-plus rule is superior to the mandatory rule in terms of theoretical foundation, malleability, and circumvention. Adopting this default-plus rule would minimize legal impediments to socially beneficial patent restrictions while preserving maximum flexibility in accommodating new technologies and licensing practices.

Post-Deportation Remedy and Windsor's Promise

Since 1996, the Defense of Marriage Act (DOMA) defined marriage for federal purposes as the union between a man and a woman. As same-sex marriage became legal across the United States, DOMA created a situation in which same-sex married couples could not access federal immigration benefits based on their married status. In some cases, this meant that noncitizens were removed from the United States solely because their same-sex marriages to U.S. citizens were not recognized by the federal government. This Comment calls such individuals pre-Windsor deportees, because their removal could have been prevented had it occurred after the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which effectively ruled DOMA unconstitutional. Essentially, pre-Windsor deportees were removed from the United States on the basis of an unconstitutional law.

This Comment argues that pre-Windsor deportees should have access to a remedy for their wrongful removal. Specifically, pre-Windsor deportees should be able to reopen their removal proceedings on collateral review through a motion to reconsider. Windsor should be applied retroactively to vacate the underlying orders of removal. This presents a formidable obstacle, because the Court’s retroactivity jurisprudence is complex and unsettled. Thus, the bulk of this Comment is devoted to arguing that Windsor should be applied retroactively. Finally, this Comment determines that the proper remedy for a pre-Windsor deportee is unimpeded return to the United States as a legal permanent resident (LPR), and this conclusion is identified as an important area for further scholarly commentary.

Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction

Congress will not enact meaningful campaign finance reform. Under the nation’s current legislative, regulatory, and judicial regimes, remedies to the problem of money in politics appear unattainable. This Comment provides an entirely novel approach toward reducing the corrosive influence of outside money on the U.S political system. Aided by the power of the profit motive, this Comment proposes the creation of Super PAC Insurance, a nonpartisan private entity with one central goal: deterring outside Super PACs and 501(c)(4) organizations from spending money in elections. The Comment details the mechanics of Super PAC Insurance, addresses its legality, and proposes several variations on its basic model.

Super PAC Insurance disincentivizes outside spending by applying the principle of “mutually assured destruction.” As demonstrated in the 2012 U.S. Senate race in Massachusetts—when then Professor Elizabeth Warren and Senator Scott Brown took The People’s Pledge—adding costs can effectively deter Super PACs from spending in elections. Once Super PACs know their spending will trigger a barrage of opposition spending by Super PAC Insurance, they should be less likely to spend against an insured candidate. Thus, Super PAC Insurance will reduce the influence of money in politics writ large.

In the wake of Citizens United and its progeny, American political spending has skyrocketed out of control. Rather than produce despondency among reformers, this new reality must catalyze innovation. This Comment’s private ordering solution moves beyond government paralysis and offers a workable path forward toward reducing the influence of outside money in politics.

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