Intolerable Inquiries

(Excerpt) A growing majority of courts have broadly accepted travel-plan questions (and their follow-up questions) as a qualifying category of traffic-mission inquiries under Rodriguez, leaving officers with a clear pathway from pretextual traffic stop—to extended discussion about vehicle occupant activities outside the traffic violation—to drug dog sniff—to vehicle search. A closer analysis of Rodriguez, however, precludes such passage through the heart of its traffic-mission rule. This Article will demonstrate that travel-plan questioning cannot qualify alongside the roadway safety checks identified by Rodriguez in its traffic-mission inquiry list because such checks provide direct information about another safety-related traffic violation and do not fit with a category of travel-plan questions that come with ambiguous variations, subparts, and follow-up. Analysis of the travel-plan majority’s rationale will further dispel these courts’ assumption that vehicle occupants generally concede privacy about their travel plans by simply deciding to travel. This Article will otherwise demonstrate that travel-plan questioning should not qualify as traffic-ticket decision inquiries under Rodriguez. The travel-plan majority omits application of another vital Fourth Amendment limitation for traffic stops—Florida v. Royer’s rule that officers must use the least intrusive means reasonably available to verify or refute the suspicion that justified the seizure. Travel-plan majority courts argue that open ended travel-plan questions can inform an officer’s decision to issue a warning rather than a ticket for hypotheticals like a driver speeding in an emergency to get another occupant to the hospital. These courts ignore that an officer can gain the same information through a less intrusive—and more traffic-mission specific—traffic-violation explanation question which directly asks: “can you explain why you were speeding?” The Royer rule is particularly important in light of the opportunity for follow-up questions, as the driver is much more likely to respond by either admitting or disputing the traffic violation itself than getting into an expanded discussion about the occupants’ unrelated activities. This Article will also explore other important practical considerations related to Rodriguez’s traffic-mission rule that should encourage future courts to adopt a more specific approach to evaluating travel-plan questions. The Supreme Court has long recognized that “the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions.” Such pressure to respond is exacerbated by the fact that an officer is not generally required to mention Miranda rights— including the right to remain silent—before questioning vehicle occupants at a traffic stop. Though some vehicle occupants may refuse to answer blunt questions about suspected criminal activity that seem out-of-place for the traffic violation at issue, they are more likely to succumb to pressure to cooperate with the officer’s seemingly benign initial question(s) about travel plans to avoid a ticket or an escalated situation with the officer. As several empirical studies have established, an allowance for travel-plan questioning without reasonable suspicion will continue to have the largest negative impact on racial minorities that are stopped at a significantly higher rate, with a disproportionately low justification in terms of meaningful drug seizures. This does not mean that a travel-plan question could never qualify as a traffic-ticket decision inquiry under Rodriguez. However, given the recognition that direct traffic-violation explanation questions will provide the contextual information needed for Rodriguez’s traffic-ticket decision in most circumstances, this Article proposes an approach for courts to require an officer who engages in travel-plan questioning to explain: (1) specifically how the questioning was based on the legal justification for the stop; and (2) why a direct traffic-violation explanation question would not have accomplished the same purpose

Creating Peaceful Coexistence Through Virtue: A Theological Approach to Institutional Religious Freedom, Equality, and the First Amendment

(Excerpt) In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as created in the image of God. These virtues also recognise a willingness to permit genuine difference, even profound moral disagreement, and loving neighbour as self by aiming to persuade to what is true and good while also accepting freedom to reject and disagree with the most deeply held convictions—whatever they may be. In Part I of the Article, I outline this theological framework before addressing a series of objections regarding the compatibility with and application of this framework to a liberal, pluralist democracy. In Part II, I turn to the First Amendment specifically, focusing on the Establishment Clause and the Free Exercise Clause as they apply to religious communities, including institutions and vendors. Using the theological virtues as a standard, I critique First Amendment jurisprudence to determine the extent to which it creates peaceful coexistence and offer some thoughts on how tensions may be reconciled. In particular, the Establishment Clause can be interpreted to prevent government interference with religious communities, but ambiguities in interpretation based on secularist “separation” approaches can restrict the ability of religious communities to participate in public life, undermining peaceful coexistence. Similarly, the Smith interpretation of the Free Exercise Clause undermined peaceful coexistence by preventing only overt and explicit discrimination against religious exercise. However, more recent decisions have started to recognise that generally applicable laws, such as anti-discrimination laws, can undermine peaceful coexistence by placing substantial burdens on religion, which damages the good of religious entities. I suggest narrow and clear religious anti-discrimination exemptions for religious vendors as best upholding the dignity of both parties and promoting a society where people of deep moral difference can peacefully coexist by recognising their respective right to meaningfully participate in and contribute to public life. Finally, the ministerial exception, in principle, upholds peaceful coexistence because it allows a religious community to select and regulate staff in accordance with a religious ethos, maintaining the dignity of the members of that organisation and enabling them to distinctively contribute to public good. However, the exception is arguably too broad as it stands because it allows discrimination on the basis of attributes unrelated to religion. This undermines the theological virtues of trust, kindness, and love of neighbour by potentially allowing malicious discrimination unrelated to upholding an ethos. A more limited exception on the basis of religion or religion-related conduct would better uphold peaceful coexistence in more practical terms

The Gatekeepers: How State Bar Associations\u27 Disciplinary Process Is Racialized and Classist

(Excerpt) Modern U.S. legal ethics and attorney regulations exist for three ostensible goals: to protect clients from unprofessional lawyers, to compel ethical performance from all licensed attorneys, and to safeguard the legal profession’s freedom to self-regulate. However, a recent study conducted by the California Bar Association revealed attorney regulation is more racialized and classist than these objectives suggest. The study explored attorney disciplinary action and found significant disparities in probation and disbarment along race and class. Put simply, the Bar functioned more to police the “other” than to protect the rights of consumers and the profession. These disparities are not unique to California. Rather, the formation of modern bar associations, particularly the American Bar Association (“ABA”), which other states model their ethics regulations after, reveals a pattern of discrimination against non-white and non-affluent lawyers. We argue this discriminatory pattern demonstrates that Bars function as racial and classist gatekeepers rather than as consumer protection agencies or representative ethics organizations. First, we review the ABA’s formation and how it shepherded the standardization of legal training and licensing processes. Second, we explore the genesis of legal ethics enforcement as promulgated by the ABA. Third, we track the fitful development of legal ethics. Fourth, we examine enforcement structures and trends, focusing on diverse states. Lastly, we propose solutions to dismantle the gatekeeping function embedded in Bar disciplinary processes

English in the Crossfire of US Immigration: A Solution in Search of a Problem

(Excerpt) Making English the official language of the US has once again reared its head, as it does periodically. This time it has gained legal footing in a novel and troubling way. It also bears more serious implications for American identity, democracy and justice than the unaware eye might see and that the country should not ignore

Reconsideration of a Previously Allowed or Disallowed Claim Under Section 502(j) of the Bankruptcy Code in New York and Delaware.

(Excerpt) Section 502(j) of title 11 of the United States Code (the Bankruptcy Code ) states that [a] claim that has been allowed or disallowed may be reconsidered for cause in a bankruptcy case. 11 U.S.C.S. §502(j). Section 502(j) further states that a reconsidered claim may be allowed or disallowed according to the equities of the case. Id. There is no definition of for cause or according to the equities of the case, but the courts have generally held that reconsideration ultimately lies within the discretion of the court. This article will analyze the scenarios under which a bankruptcy court in New York and Delaware may reconsider previously allowed or disallowed claims under Section 502(j). First, the memorandum will discuss the governing law applicable to this issue. Subsequently, the article is divided into two sections; the first will highlight situations in which courts have historically granted motions to reconsider claims, while the second will discuss the rationale adopted by courts that deny reconsideration of claims

Wake Up: How Application of Garcetti to Public Educator Speech Harms Educators and Students Through the Lens of Florida\u27s Individual Freedom Act

(Excerpt) Nearly twenty of the nation’s states have enacted some kind of law that limits the teaching of controversial topics like race, gender, and politics. Within the last three years, these laws have become more commonplace as social movements like Black Lives Matter and #MeToo have brought topics like systemic racism and gender inequality to the nation’s attention. As the country becomes more polarized, state legislatures—typically conservative ones—have resorted to these censorship laws to fight back against the perceived indoctrination of children. The state that has gained the most notoriety for such laws is Florida. In 2022, Florida passed a wide-reaching law called the Individual Freedom Act (“IFA”), which is the self-described strongest law in the nation to fight back against “woke indoctrination.” The law prohibits teaching concepts in a variety of areas that could lead to a child feeling guilty about their race or gender and has been used as a weapon to attack anything from diversity, equity, and inclusion (“DEI”) programs to Advanced Placement (“AP”) African American history classes. As many states pass laws that censor conversations around race and gender, cases raising constitutional concerns over the First Amendment rights of students and educators have begun to make their way through the nation’s court systems. In confronting these challenges, courts must also face a circuit split regarding what test should be used to assess educators’ free speech rights. The split centers around the application of Garcetti v. Ceballos, a 2006 Supreme Court decision that held that public employees have no free speech rights if they are speaking pursuant to their duties as an employee. It is unclear whether or not this holding applies to educators in public schools. The Supreme Court explicitly declined to take its holding that far, leaving a space for lower courts to fill. Consequently, circuits have interpreted the case differently. This Note highlights the inconsistencies among circuit courts and argues that Garcetti should not apply in academic contexts to protect educators’ academic freedom as well as students’ First Amendment right to receive information. Part I of this Note will provide background on Florida’s Individual Freedom Act. It will include a discussion on what exactly the law prohibits, as well as a discussion of its effects on public school education in Florida. Part II of this Note will review the holding of one court that held that Garcetti does apply in academic settings. Part III will discuss the confusing jurisprudence of another circuit. Part IV will review the decisions by two circuits that have held Garcetti does not apply in academic settings. Part V of this Note will argue that applying Garcetti to academic settings will strip teachers of all their First Amendment rights as well as severely impair the First Amendment rights of students

The Collection Problem: How the Circuit Split on Pleading Standards in Securities Fraud Claims Undermines Federal Regulatory Goals

(Excerpt) The Great Depression is generally recognized as the greatest economic calamity in United States history. One of the Great Depression’s many causes was reckless financial speculation driven in part by financial fraud. In response to the crisis, Congress passed the 1934 Securities Exchange Act (“the Exchange Act”), which courts have long held creates a private right of action for plaintiffs who experience an economic loss due to reliance on a material misstatement surrounding the purchase or sale of a security. A prima facie claim for securities fraud under the Exchange Act requires a showing of scienter, defined as “a mental state embracing intent to deceive, manipulate, or defraud.” Securities fraud claims under the Exchange Act provide an important remedy for investors who suffer losses due to fraudulent misstatements related to securities, and they serve a central regulatory function of ensuring accurate disclosure of information in financial markets. However, they have also provided fertile ground for frivolous lawsuits that lack merit and are intended solely to coerce defendants into settling to avoid costly discovery. In response to a proliferation of frivolous claims, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”) in 1995. Among other changes, the PSLRA elevated the pleading standards for the scienter element of securities fraud claims, requiring plaintiffs to plead facts giving rise to a “strong inference” of scienter to survive a motion to dismiss. The need to plead specific facts around this state-of-mind requirement presents an interpretive puzzle when dealing with corporate defendants because corporations lack their own discrete minds and “think” only through their employees, officers, and agents. Different approaches to interpreting the PSLRA’s heightened pleading standards have created a circuit split around the degree of factual specificity required to plead scienter on the part of a corporate defendant, wherein certain courts consider the knowledge and states of mind of various corporate employees or agents in the aggregate when assessing the corporation’s state of mind, while others reject this type of aggregation. This Note will survey and evaluate the doctrinal roots of the competing approaches. Ultimately, it will argue for an extension of the Sixth Circuit’s approach, which allows courts to consider the states of mind of key decisionmakers in the aggregate in order to raise the required inference of scienter by the corporation

Time Traveling with the Foreclosure Abuse Prevention Act: New York’s New Law and the Constitutionality of Retroactivity

(Excerpt) This Note argues that the Foreclosure Abuse Prevention Act should be interpreted to apply retroactively and that retroactivity is constitutional. Part I will survey the history of the foreclosure crisis that led to the abusive litigation tactics that made FAPA necessary. Part II will analyze the most notable provisions of FAPA which have given effect to the legislature’s intent in passing FAPA. Finally, Part III will examine the constitutionality of retroactive legislation and review the validity of arguments surrounding FAPA’s retroactivit