January Book 2018 | University of Richmond Law Review

Is It Bad Law To Believe A Politician? Campaign Speech And Discriminatory Intent

Shawn E. Fields *

Politicians lie. For better or worse, we have grown accustomed to this unsavory practice. We expect candidates for public office to make promises they have no intention of keeping. We expect candidates to say one thing to “play to the base” during primaries, only to contradict themselves as they “play to the middle” in the general election. But should this unfortunate fact of political discourse influence judicial analysis of a politician’s potentially unconstitutional motivations behind a challenged government action? Should courts refuse even to consider discriminatory and inflammatory campaign pledges in assessing the purpose of a statute or regulation simply because we distrust our elected officials? Can such a bright-line evidentiary exclusion be justified even when a political candidate speaks openly, consistently, and convincingly about his desire to enact impermissibly discriminatory policies if elected?

∗ Professor of Legal Writing, University of San Diego School of Law; Professor of Political Science, Point Loma Nazarene University. I would like to thank my research assistant, Gwenllian Kern-Allely, for her invaluable contributions to this article.

Separate But (Un)Equal: Why Institutionalized Anti-Racism Is The Answer To The Never-Ending Cycle Of Plessy v. Ferguson

Maureen Johnson *

Do as I say, not as I do. For decades, Plessy v. Ferguson has been identified as one of the worst decisions ever handed down by the Supreme Court. In a near unanimous opinion, the Justices found nothing unconstitutional about a law that required African Americans to ride in a separate boxcar from their white counterparts. In fact, the ruling even seemed progressive at the time as it required that the separate boxcars be qualitatively the same. Justice Harlan authored the sole dissent that housed his infamous prophecy that the Plessy decision “in time, [would] prove to be quite as pernicious” as the Dred Scott decision. Yet despite universal condemnation, America still has not learned to truly rid itself of the lingering effects of Plessy.

* Associate Clinical Professor, Loyola Law School, Los Angeles. The author thanks all of her colleagues at Loyola, specifically including Associate Dean for Research Justin Levitt, as well as the author’s research assistant, Faith Lewis, a sophomore at American University. The author also thanks all of those who participated in the 2017 Legal Writing Institute Writers Workshop, where this paper was workshopped. In particular, this author thanks Professors Christine Coughlin, Aliza Milner, and Elizabeth Sherowski.

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication

Stacey M. Lantagne *

If you are one of the many people who use social media daily, chances are you have shared copyrighted photographs, retweeted copyrighted Vines, and reblogged copyrighted GIFs, all of celebrities or anonymous people you know only through the meme itself, and you have never paid a cent to anyone.

Social media is a huge and profitable business, and it is often stated that much of it is based on user-generated content. Facebook, Twitter, and Tumblr are nothing without the people who upload to the sites, but social media is frequently not about the posting of content you have generated yourself, but rather the reposting of content you have seen other people post, often without the knowledge or consent of either the rights-owner or the people in the content itself.

* Assistant Professor of Law, University of Mississippi School of Law. The author wishes to thank the participants of the Internet Law Works-in-Progress Colloquium, the Mid-West Popular Culture Association/American Culture Association Annual Conference, the Works-in-Progress Intellectual Property Colloquium, the University of Missouri College of Law Faculty Speaker Exchange, and the University of Mississippi Faculty Writing Groups for helpful comments and suggestions. The author is also grateful for the University of Mississippi School of Law Summer Research Grant that enabled this article.

Katz v. United States: Back To The Future?

Michael Vitiello *

Fifty years ago, in Katz v. United States, the United States Supreme Court developed a flexible approach to assessing when the police’s use of modern technology became a search within the meaning of the Fourth Amendment. Katz abandoned the importance of trespass law and reframed the debate in terms of expectations of privacy.

Decided towards the end of the Warren Court era, Katz, like other progressive Warren Court decisions, has undergone a retrenchment over most of the past fifty years. In a series of post-Warren Court cases, the Court routinely found that when a suspect exposed information to third parties, society did not recognize the suspect’s expectation of privacy as reasonable. Thus, when the police sought similar access, the police conduct did not amount to a search. The post-Warren Court did not focus on how much privacy is essential to a free society. The post-Warren Court cases had the effect of allowing technological innovation to determine how much privacy the Fourth Amendment protects. Framed differently, when companies developed technology that required us to expose information to third parties—for example, when we use cell phones or global monitoring technology—the act of sharing information with the technology company eroded Fourth Amendment protection.

* Distinguished Professor of Law, The University of the Pacific, McGeorge School of Law; University of Pennsylvania. J.D., 1974; Swarthmore College, B.A., 1969. I want to extend my thanks to participants in the 2017 SEALS conference panel on Criminal Justice and Technology, organized by Catherine Hancock and Cynthia Alkon, for their helpful comments. Particularly detailed and helpful were Scott Sundby’s comments. In addition, I offer special thanks to my research assistant Kendall Fisher for all of her help.

Rethinking Removal And “Relates To”: International Arbitration Disputes And The N.Y. Convention

Holly Wilson *

To most, “The New York Convention” may sound like a gigantic conference center filled with people wearing “I heart NY” shirts and eating thin crust pizza, but for a small group of international commercial litigators, it sounds like a trump card to end all trump cards, a ticket into federal court and—eventually—out to arbitration.

The N.Y. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) is an obscure and infrequently utilized part of Chapter 2 of the Federal Arbitration Act implementing the United Nation’s Convention covering how to enforce and recognize foreign arbitral awards and agreements. One of the marvels of the Convention is that it contains special, extremely defendant-friendly removal provisions. Where these provisions come to life though is in how the courts construe and enforce them. Specifically, the Convention requires that a foreign arbitration agreement “relate to” the subject matter of the case for it to be removable, irrespective of diversity of citizenship or federal question jurisdiction. The Fifth Circuit originally crafted a standard in Marathon Oil v. Ruhrgas, A.G. interpreting the “relates to” requirement that struck the right balance to allow easy removal but maintain structure. Now, however, the Fifth Circuit has created a new standard in Beiser v. Weyler interpreting “relates to” so broadly that the gate into federal court is blown right off of its hinges. Alarmingly, more and more circuits are picking up the Fifth Circuit’s new test. Many circuits though have yet to adopt any test as these cases are very niche and come up only on occasion.

* J.D., 2016, University of Richmond School of Law; B.A., 2013, Denison University. A special thanks to Jamie Adkins, Andrea Mousouris, and Sarah Ashley Barnett for encouraging me in this endeavor. Thank you to my fierce female family tribe for enabling me to embrace my ambition and teaching me that my voice matters.

COMMENT: Removing Race From The Jury Deliberation Room: The Shortcomings Of Pena-Rodriguez v. Colorado And How To Address Them

Lauren Crump *

Justice Kennedy began his recently decided Peña-Rodriguez v. Colorado majority opinion by saying, “The jury is a central foundation of our justice system and our democracy.” The case grappled with the question of whether the long-standing federal rule that jury members cannot testify about any aspect of the deliberation process should give way in cases of racial bias. In a 5-3 decision, the United States Supreme Court found that it should, thereby creating an exception to the commonly referred to “no-impeachment rule.” This exception comes after many expressed concerns that allowing testimony about jury deliberations will undermine the criminal justice system. Those opposed to the exception fear that this exception will remove finality from jury verdicts, dissuade jurors from engaging in “heated discussions” during deliberations and lead to harassment of jurors. Notwithstanding these concerns, the Court ruled that ensuring the elimination of racial bias in jury deliberations was too important of a government objective to allow for the no-impeachment rule to remain undisturbed.

* J.D. Candidate, 2018, University of Richmond School of Law; B.A., 2015, Syracuse University. I would like to first thank the University of Richmond Law Review staff and editors for all of their hard work in preparing this comment for publication. I would also like to thank Professor Ronald Bacigal for giving me the opportunity to write this comment and for all of his encouragement during the process. Finally, I would like to thank my parents and my sister for always inspiring me to do my best.