Appoint Judge Ana de Alba to the Ninth Circuit

The United States Senate must rapidly appoint Eastern District of California Judge Ana de Alba to the Ninth Circuit. This appellate tribunal is a preeminent regional circuit, which faces substantial appeals, has the largest complement of jurists, and clearly includes a massive geographic expanse. The nominee, whom President Joe Biden designated in spring 2023, would offer remarkable gender, experiential, ideological, and ethnic diversity realized primarily from serving productively with the California federal district, and state trial, courts after rigorously litigating for one decade in a highly regarded private law firm. For over fifteen years, she deftly excelled in law’s upper echelon. The post which the judge could fill has been vacant for months. Thus, the Senate needs to promptly approve the well qualified, mainstream nominee

Ending Race-Based Pretextual Stops: Strategies For Eliminating America\u27s Most Egregious Police Practice

Pretextual policing is the practice of stopping motorists or pedestrians for minor offenses like traffic infractions in hopes of learning that the person stopped has committed a more serious crime. Pretextual policing is also the main reason Black Americans are so much more likely than white Americans to be subjected to encounters with law enforcement. Shockingly, even in its most explicitly racist form, pretextual policing does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures. In fact, police can pull a driver over merely because he is Black without violating the Fourth Amendment, so long as the officer points to one of the hundreds of traffic laws most drivers violate every day as the objective basis for initiating the encounter. According to the Supreme Court, the subjective motivations of a police officer for conducting a stop are entirely irrelevant. During the 2020 special session of the Virginia General Assembly, the Commonwealth of Virginia passed landmark legislation eliminating many of the most commonly used pretexts, such as exhaust noise, objects hanging from the rearview mirror, tinted windows, jaywalking, and marijuana odor. Since doing so, many other states and localities have sought to pass similar reforms, recognizing the inordinate power police possess to do their jobs in a discriminatory manner without accountability. This article discusses the history of pretextual policing and urges policymakers and advocates to identify and pursue reforms to limit pretextual policing without jeopardizing true public safety

Going the Extra Mile: Expanding the Promoting Affordable Housing Near Transit Act

The Promoting Affordable Housing Near Transit Act (“Act”), introduced in Congress in June 2021 and signed into law six months later, proposes a goal of balancing the disproportionately-high costs of housing and transportation felt by lower-income families by combining these resources in one project: transit-oriented housing developments. Middle-income and wealthy suburbanites have ready access to cities by car, but lower-income urbanites lack access to the suburbs without a private vehicle. While the goal of the Act recognizes this disparate outcome, the Act’s failure to include expansion of mass transit into the suburbs will continue to restrict low-income minorities to urban centers, failing to do more than place a band-aid on a decades-long issue. As jobs increasingly move to the suburbs, placing affordable housing in those areas and creating a transit option for urban dwellers offers a more equitable choice in housing for low-income households. The Act should be amended to require expansion of mass transportation into the suburbs, creating an interconnected system between cities, the suburbs, and suburban neighborhoods. The goal of this Comment is to take the techniques employed in two of the nation’s best transit cities and combine them with the affordability focus of the Act, leading to positive economic development that includes low-income households. The issue of limited affordable housing is multidimensional, requiring a correspondingly complex solution for this historic problem. Thus, the focus of this Comment touches on just one problematic environment and one potential solution. This Comment uses major metropolitan cities and their surrounding suburbs as the basis of analysis, not to the exclusion of other localities but in recognition of the unsuitability of a one-size-fits-all solution. It is also important to note here that while the focus of the divide in this Comment is on socioeconomic status and not race, the two are inextricably linked. The history of racial segregation in the United States contributes to the disparity between the racial makeup of the country and of its socioeconomic classes. As you will see, many of the facially socioeconomic decisions made in the last century act as a mask for racially motivated animus. While the examples and solutions provided in this Comment do not focus on the racial disparity in these developments, it must be understood that these implications always lurk beneath the surface. Part I of this Comment will give a brief overview of the history of residential segregation in the United States and how transportation policies contributed to the concentration of poverty in one area, namely urban city centers. This historical overview focuses on mid-twentieth century America, specifically during the post-World War II era where housing subsidies became more abundant and, increasingly, a covert form of discrimination. This Part concludes by discussing why public transportation has failed to make its way to the suburbs and why its expansion into these areas is necessary for the Act’s success. Part II expounds upon the particulars of the Act and its proposed implementation in the current transportation and housing framework. Finally, Part III offers examples of successful transit-oriented development projects and suggestions of how expansion into the suburbs and multimodal transportation options can cement the Act’s success. This Part proposes amending the Act to mandate that federal transit projects affected by the Act include transportation expansion into the suburbs. While the Act in its current form does not exclude the suburbs from transit development, neither does it set forth an objective to promote it. Because most mass transit exists in major metropolitan areas, the Act should demand inclusion of the suburbs in these new developments to help bridge the divide between urban and suburban communities. Lastly, this Part addresses critiques of current approaches to the housing shortage, such as mixed-income communities, and articulates why the proposals in. this Comment can mitigate some of these concerns

e-Museletter: April 2023

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“If You Build It, They Will Come”: Reverse Location Searches, Data Collection, and The Fourth Amendment

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array of new technology, including automated license plate readers, complex facial recognition searches, and reverse location searches. The use of reverse location searches dates to at least 2016. Reverse location searches provide law enforcement the ability to reverse-engineer the location of people for the purposes of an investigation. This is accomplished with location data collected by third-party companies from their users’ electronic devices. Many electronic devices, such as cellphones, are equipped with GPS, which determines a device’s location using signals from satellites. Additional information can be used to pinpoint the location of a device through Wi-Fi, mobile networks, and certain device sensors. Google, for example, states that in order to collect the location data, it uses “GPS and other sensor data from your device,” your “IP address,” “[a]ctivity on Google services, such as your searches and places you label like home or work,” and “[i]nformation about things near your device, such as Wi-Fi access points, cell towers, and Bluetooth-enabled devices.” This Comment examines the two types of reverse location searches in detail, analyzing the constitutionality of each under these three questions: (1) is it a search under the Fourth Amendment? (2) can it meet the particularity and probable cause requirements? (3) does it fall into the category of general warrants prohibited by the Fourth Amendment? Ultimately, it argues that reverse location searches are constitutional, raising the question of whether existing Fourth Amendment doctrine is sufficient to guarantee the Amendment’s protections

Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth”

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students all heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press–protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti–disinformation frame could tip the scales and generate a majority on the Court to dismantle almost sixty years of constitutionalized defamation law. The new anti–disinformation frame brings with it serious democratic costs without clear corresponding benefits. Defamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super–sized by our current socio-historical context. Especially as claims of disinformation drift away from political speech to economic and social matters, this as a distinct justification increasingly evaporates. Lest progressives too quickly rejoice over the apparent success of their disinformation claims against right–wing media, anti–disinformation defamation litigation presents an equal opportunity invitation—and conservative cases are already on track. The new disinformation frame for defamation suits offers an illusory distraction and further politicizes defamation. Instead, the Article suggests a shift of focus to the audience in order to advance the anti-disinformation project while returning defamation law to its traditional concern with individual reputation