Articles by CLSA

The End of the “War”? Sentencing in Drug Cases in the Wake of the Fair Sentencing Act of 2010 by Monica Harris

For decades the Federal Sentencing Guidelines have subjected defendants in drug cases to drastically different sentences depending on whether their offenses involved crack or powder cocaine.  Any cursory study of the “War on Drugs” reveals that crack cocaine is much more likely to be used by minority populations, or in low-income areas.  Conversely, powder cocaine is more often used in middle class communities.[1]  The Anti-Drug Abuse Act of 1986 and Federal Sentencing Guidelines proscribe that district judges should use a 100:1 ratio for the amount of powder cocaine compared to crack that is required to trigger a mandatory minimum sentence.[2]  The practical implication of this law has been that powder cocaine users receive drastically lower sentences. For example, in United States v. Corner, the Seventh Circuit refused to reconsider the sentence of a defendant in a crack cocaine case.[3]  The crack defendant had been sentenced to 188 to 235 months where he would have only been sentenced to 151 to188 months had his offense involved powder cocaine.[4]  This case does not even present the most egregious example, because the defendant in Corner was a career offender.  In some federal circuits, career offenders are not able to be relieved from mandatory [read more]

Restoring Congressional Oversight of International Trade Agreements: The Trade Act of 2009 by Matthew Bohenek

The Trade Reform, Accountability, Development, and Employment (TRADE) Act of 2009, filed by Representative Michael Michaud and Senator Sherrod Brown, proposes to add extra Congressional oversight to trade agreements that are currently negotiated with little such oversight by agents of the executive branch, in particular the United States Trade Representative.  Some of these trade agreements, while removing barriers to global trade, can have unintended consequences on local, state, and national policies that are unrelated to the goals of trade.  For example, some provisions of the General Agreement on Trade in Services could render federal, state, or local regulation of issues such as online gambling or the siting of liquefied natural gas terminals moot, effectively requiring that any regulations be only as restrictive as those of the least restrictive signatory to the Agreement.  This could essentially subjugate the authority of state and local, and even federal policymakers to international actors who are not accountable to the American people on matters of critical local importance.  Subordinating matters such as regulation of online gambling to federal interests in liberalizing international trade raises legitimate federalism concerns. Both the legislative and executive branches have authority under the Constitution that relates to the formation of trade [read more]

Technology and the Fourth Amendment: Striking a Balance between Efficient Law Enforcement and the Right to Privacy by Gabriel de Corral

I. Introduction The Fourth Amendment to the United States Constitution establishes, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. …”[i] The development of Fourth Amendment jurisprudence has continuously dealt with emerging technology and how it should be used to determine whether the use of certain technologies are a violation of a person’s constitutional rights.  Although the “exploitation of technological advances”[ii] by the government and law enforcement officials raises “grave constitutional questions under the Fourth Amendment,”[iii] it is important that these fantastic advances in the field of communication are not wasted merely because of a potential for their misuse. The U.S. Supreme Court has yet to establish a test or rule that effectively outlines how emerging technology should be treated in light of the Fourth Amendment.[iv]  The Supreme Court has not yet decided whether the use of Global Positioning Systems (GPS) by police in criminal investigations constitutes a search under the Fourth Amendment, and moreover, has avoided the possible question of the constitutionality of any type of government “mass surveillance”[v] program. This blog entry will argue that the use of a GPS device has become [read more]

Not in My Borders: An Analysis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act by Natanya DeWeese

Introduction In 2009, there were approximately 11.1 million illegal immigrants in the United States.[1]  In an attempt to address the rampant illegal immigration in Arizona,[2] the Arizona State Legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act, known as Senate Bill 1070 (S.B. 1070).[3]  The bill requires Arizona law enforcement officials to verify the immigration status of an arrested, stopped, or detained individual upon reasonable suspicion that the individual is unlawfully present in the United States; authorizes the warrantless arrest of a person if there is probable cause to believe the person committed an offense that makes the person removable from the United States; and criminalizes the failure to apply for or carry alien registration papers and for illegal aliens to apply for, solicit, or perform work in the United States.[4] Opponents of this controversial law claim that S.B. 1070 discriminates against Hispanics regardless of their citizenship status, and fear that it will lead to harassment and discrimination of Arizona’s Hispanic population. [5]  Other critics of S.B. 1070 fear the law will lead to fear and distrust in Arizona communities, increased crime and litigation, and some likened Arizona state officials’ authority to demand aliens’ registration papers to Nazism.[6] [read more]

Stigmatized Silence: The exclusion of HIV and AIDS Sufferers from the “Obamacare” Legal Landscape by Ashley Southerland

I.             INTRODUCTION For some time now, American citizens infected with human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS)[1] have held a tenuous place amidst the substantively ambiguous concentric circles of the healthcare system, insurance regimes, and the law.  Literally and legally, these individuals—despite being engulfed in an epidemiological and often-losing battle for their lives—only have shaky ground, at best, upon which to demand per se protections under the law throughout the various stages of their disease.[2] Unfortunately for them, the economic rationales for health status-based insurance discrimination and the legislative silence on protection under the Americans with Disabilities Act have resulted in a legal “donut hole” that has left many asymptomatic[3] HIV and AIDS sufferers lost in the legal fray, further stigmatized and uninsured with mounting medical costs and no foreseeable economic relief. However, now that the Obama Administration has instituted major health care reform, both the health care system and the insurance coverage regime will receive a significant overhaul.  This Blog posits that, while “Obamacare” reform is no doubt one of the most significant pieces of social legislation of this era, the two laws that define it—the Patient Protection and Affordable Care Act[4] (PPACA) and the [read more]

Vanishing Venue: Poof! And You Lose by Stephen Brown

I.  Disparate Results for Similarly Situated Plaintiffs Imagine two plaintiffs in Georgia, Alice and Belinda, with very similar claims.  Alice was injured by a product that was manufactured and sold in Fulton County, Georgia.  Belinda was injured by a similar product, which was manufactured in Fulton County, but which was sold in nearby de Kalb County.  Both plaintiffs live in Fulton County and were injured in Fulton County.  Alice sues both the seller and the manufacturer as joint tortfeasors in Fulton County, as that is the only county where she may sue.[1] Belinda, who may sue in either Fulton County or de Kalb County,[2] decides to sue both defendants in Fulton County, since that is where she lives. Although it was not immediately apparent at the time that their suits began, it becomes clear during the course of their respective trials that the defect in these products arose in the hands of the sellers, not the manufacturer.  Thus, the Fulton County Court relieves the manufacturers of all liability in both Alice’s and Belinda’s cases.  That presents no problem for Alice, as long as the seller is solvent—the Fulton County Court can still enter judgment against the seller for Alice’s injuries, [read more]

Necessary, but Not a Necessary Evil: Reforming Mandatory Auto Insurance Laws by Miles N. Clark

I. Introduction In March 2009, Housing and Urban Development Secretary Shaun Donovan testified before Congress about the growing danger of a unique low-income housing crisis.  He stated that suburban sprawl has decentralized both affordable housing and job opportunities, which has rendered low-income families particularly susceptible to energy cost spikes.  Today, low-income suburban families spend nearly one third of their income on transportation.[ii] As the price of private transportation continues to soar, the rate of gentrification of urban areas has increased.  This, in turn, leads to rises in rents and property taxes in urban areas, which forces low-income residents to migrate to low-cost areas.  And for the first time, the destination of the underclass is the former haven of the old establishment: the suburbs, which during the past twenty years have been overbuilt and are now drastically undervalued.[iii] However, low-income families are particularly ill-suited to suburban life.  Its low densities and “clustered” land use patterns make public transportation uneconomical,[iv] and compel transportation by automobile.[v] Faced with unprecedented demand for private transportation among indigent drivers, states should seek to decrease the derivative costs of car ownership by providing government-run automobile insurance schemes for minimum coverage.  As three Canadian provinces demonstrate, such schemes [read more]

New York City Taxation of Corporate REMIC Residual Interest Holders by Mireille Zuckerman

I. Introduction In 2007, the New York Division of Tax Appeals ruled in Delta Financial that the starting point for determining New York State corporate entire net income includes Real Estate Mortgage Investment Conduit (REMIC) excess inclusion.[1] The effect of Delta Financial is that even if a corporation has net losses for a taxable year, REMIC residual interest income remains subject to New York State tax.  This mimics the federal treatment of residual interest income.  Although New York City has not litigated this issue, the reasoning behind Delta Financial also applies to New York City general corporate tax. Although the State published REMIC guidelines in 1988, the 2007 case was the first on this issue.  This is probably because the REMIC excess inclusion provisions have an impact on State and City tax assessment only in years in which a corporation reports a net loss.  After big losses in 2007 and 2008, corporations have been reporting zero taxable income to both the State and the City, even if they have large amounts of REMIC interest income.  New York City should begin pursuing this untaxed income.  This post briefly describes REMICs and the reasoning behind Delta Financial and the City’s decision to [read more]

The Expansion of California’s Firefighter’s Rule Beyond its Intended Scope by Harley Glazer

The firefighter’s rule is a legal doctrine that prevents a firefighter from recovering from an individual whose ordinary negligence created the fire.[1] While it may seem harsh to disadvantage those who risk their lives to protect society, there are several policy considerations that support the doctrine.  First, firefighters should not be permitted to sue for the very negligence which begets their employment.[2] Second, firefighters receive specialized training in combating fires.[3] Thus, if they fail to properly employ their skills, they should not place the blame on the fire starter.  Third, firefighters already receive adequate compensation for the risks attendant with their employment.[4] Lastly, the general public should not be subject to double liability, given that the public already pays for the services of firefighters through taxes.[5] However, the firefighter’s rule is inappropriate in certain other contexts, which the legislature should take action to prevent. Several California courts have inappropriately extended the firefighter’s rule to other professions. For example, in Holland v. Crumb, the California Second Appellate Division prohibited a tow truck driver from recovering for injuries he sustained when he was struck by a car while attempting to tow a car that was situated on the side of the highway. [read more]

She Take My Money When I’m in Need: Arguments in Favor of Retaining the Willfulness Requirement in the Lanham Act’s Monetary Relief Provision by G. Ian Peng

Introduction Section 35(a) of the Lanham Act[1] addresses monetary remedies for trademark infringement and false designation claims.[2] Before 1999, this section entitled the plaintiff-trademark owner to potentially receive the defendant’s profits, damages sustained by the plaintiff, and the costs of the action, if there is a violation under § 43(a) of the Lanham Act (concerning false designations and descriptions of goods or services),[3] subject to principles of equity.[4] Most jurisdictions followed the rule that the defendant’s conduct had to be willful for the plaintiff to receive a monetary award.[5] The Trademark Amendments Act of 1999 revised § 35(a) by replacing “a violation under section 43(a)” with “a violation under section 43(a), or a willful violation under section 43(c)” (which deals with trademark dilution and tarnishment) as qualifying for monetary awards.[6] By including the word “willful” for § 43(c)—but not for § 43(a)—courts were left divided on whether the amendment extinguished the willfulness requirement for infringement and false designation claims.[7] This note argues that willful deception should be a prerequisite to an award of profits or damages for trademark infringement and false designation claims.  It considers, in turn, the meaning of “willfulness”, the text and legislative history of the Trademark Amendments [read more]