This Article explores the implications of the Supreme Court’s recent decision in Janus in light of the Court’s apparent adherence to “the doctrine of one last chance,” which requires the Court to give advance notice of its willingness to issue disruptive decisions.
Biometric Passwords and the Fifth Amendment: How Technology Has Outgrown the Right to Be Free From Self-Incrimination
An individual cannot “plead the Fifth” if asked to unlock a smartphone using a physical feature. On the other hand, an individual who possesses the same smartphone, but uses a nonbiometric password, can successfully “plead the Fifth” and refuse to disclose the password. This Comment explores this legal issue and sets forth a proposal on how courts can extend the Fifth Amendment privilege against...
No More Hieleras: Doe v. Kelly’s Fight for Constitutional Rights at the Border
U.S. Customs and Border Protection’s (CBP) short-term holding cells have received mass media attention because of their inhumane and punitive conditions. CBP agents and immigration detainees alike refer to these cells as hieleras. This Comment draws attention to rights violations inside hieleras and is the first to analyze a groundbreaking class action lawsuit brought by an immigrants’ rights...
Sixth Amendment Sentencing After Hurst
The U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded, invalidating sentencing practices across the country, and at times it has contracted, allowing...
Bakke at 40: Remedying Black Health Disparities Through Affirmative Action in Medical School Admissions
In this Comment, I argue that the persistence of racial health disparities today is not only a relic of a long history of anti-Black racism in healthcare, but a consequence of the Court’s colorblind approach to affirmative action jurisprudence since U.C. Regents v. Bakke and the restrictions in access to predominantly white institutions that have resulted. In recounting the history of racism in...
Monopolizing Trade: Airline Ticket Change Policies and the Thwarted Secondary Market
Suppose you have a domestic economy-class airline ticket that you can no longer use. In the 1980s and early ’90s, there was a secondary market in domestic airline tickets, carried out openly in newspaper classifieds. Though many tickets were nominally nontransferable, back then, the airlines didn’t check every passenger’s name. Problem solved. But now, American, Delta, and United will charge you...
The Supreme Court, Due Process and State Income Taxation of Trusts
What are the constitutional limits on a state’s power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina’s income taxation of...
Copyright Enforcement in the Digital Age: When the Remedy is the Wrong
This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent...