Volume 69, Number 5 – February 2020

Articles

State Attorneys General as Agents of Police Reform
Jason Mazzone & Stephen Rushin
PDF

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 34 U.S.C. § 12601 to authorize the U.S. attorney general to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (“DOJ”) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year, and in 2017 the Trump administration announced it would no longer enforce § 12601.

In response, some state attorneys general have sought to fill the regulatory gap. These attorneys general claim legal standing under the common law doctrine of parens patriae to seek equitable relief in federal court against police departments within their states for violations of constitutional rights—even without any statutory authority for their lawsuits. Allowing these cases to proceed would give state attorneys general expansive and untapped potential as agents of police reform, with significant implications for police practices and accountability.

This Article provides a cautionary tale about uses of parens patriae by state attorneys general and presents an alternative. It urges that the common law doctrine of parens patriae should not allow state attorneys general to seek equitable relief in federal district court against local police departments engaged in patterns of misconduct. The Article shows that such uses of parens patriae raise numerous doctrinal and policy concerns. Nevertheless, the Article concludes that state attorneys general are uniquely situated to provide a check on abuses by local law enforcement and that they should be given the tools to do so. As an alternative to using common law parens patriae, both Congress and state legislatures should grant state attorneys general explicit statutory authority to seek equitable relief against local police departments. Empowering state attorneys general in this manner has the potential to curb seemingly intractable problems of police violations of constitutional rights.

“Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency
Nick Robinson
PDF

The Foreign Agents Registration Act (“FARA”) is a sweeping and generally underenforced public-disclosure statute. Enacted in 1938, FARA was used during World War II to target fascist propaganda, but by the 1960s its enforcement had shifted to lobbyists and public-relations firms for foreign governments. After the 2016 presidential election, FARA has gained favor among policymakers and prosecutors as a central tool to respond to a range of foreign influence in U.S. politics, including foreign lobbying, electioneering, and disinformation.

This Article argues that FARA’s breadth creates substantial risk that it will be used in a politicized manner. In the past decade, analogous transparency laws in other countries—often justified by reference to FARA—have been weaponized to target dissenting voices with the stigma and burden of registering as a “foreign agent.” This Article undertakes an analysis of FARA to show how its broad and unclear provisions make FARA susceptible to being similarly used in the United States, especially against nonprofits, the media, and public officials. It examines three cases in which FARA was arguably enforced in a politicized manner, explains why strengthening the Act’s enforcement would likely exacerbate this problem, and discusses the Act’s potential constitutional deficiencies under the Supreme Court’s recent First Amendment jurisprudence.

The Article ends by weighing the merits of using FARA to address different types of foreign influence. It posits that transparency provisions like those in FARA are most appropriate, and on strongest ground, when applied to (1) those who clearly are acting at the direction or control of a foreign government or political party; and (2) when the covered activity involves core democratic processes, such as lobbying or electioneering. It warns that using FARA to target disinformation is unlikely to be effective and presents a high risk of politicized abuse. Based on these insights, it suggests three potential strategies for FARA reform.

Notes

A Border Deferred: Structural Safeguards Against Judicial Deference in Immigration National Security Cases
Ali Shan Ali Bhai
PDF

When confronted with cases lying at the intersection of immigration and national security, the judiciary has abided by a consistent principle: the president knows best. Since the late nineteenth century, rather than deciding these cases on the merits, courts have instead deferred to the executive branch. Courts’ reluctance to engage in judicial review of these policies is based on the traditions of special national security deference and the plenary power doctrine. Deference of this kind is not without its proponents, who cite the executive branch’s vast institutional advantages in the realms of immigration and national security. Detractors, on the other hand, contend that this deference renders the president beyond judicial review, creating a blank check for the executive branch to take questionable acts in immigration matters with little to no scrutiny by the legislative or judicial branches. After the Supreme Court granted certiorari to hear a challenge to President Trump’s controversial travel ban case in Trump v. Hawaii, both sides saw it as an opportunity to either preserve or jettison deference to the executive branch in this area.

But with a narrow 5–4 holding, neither side could claim victory. Instead, the future of plenary power remains an open question. To fill the gap, this Note proposes practical safeguards for the judiciary to act as a counterweight to unchecked executive authority in the realm of immigration law.

What’s in the “Black Box”? Balancing Financial Inclusion and Privacy in Digital Consumer Lending
Aaron Chou
PDF

The availability of credit is a foundation of the American economy, but not everyone has an avenue to credit. Financial Technology (“FinTech”) lending plays a sizable role in providing these avenues for Americans who would not otherwise have access to loans and are forced to turn to high-cost loan instruments like payday lending. Most scholars who have contributed to the topic of FinTech lending have focused on the risk of discrimination by Artificial Intelligence within FinTech lending platforms. This Note argues that given the recent history of data breaches in the credit industry, privacy issues should be a part of the larger discussion. Furthermore, balancing privacy with FinTech lending’s goal of financial inclusion will be a task required by regulation such as the Fair Credit Reporting Act.

This Note argues that the number of issues that might arise—the inherent invasiveness of FinTech and the unfairness of the contracts; the biased nature of their algorithms; the lack of transparency; and the danger of data breaches—should ultimately play second fiddle to the goal of financial inclusion. The reason is that although the two priorities of privacy and access to credit seem to offset one another, they actually balance in counterintuitive ways. Even though there are legitimate privacy concerns with the FinTech model, they can be softened by greater transparency. Toward this end, this Note discusses the solutions that have been offered to help eliminate the opacity of FinTech lending’s Artificial Intelligence and ultimately proposes the use of counterfactual explanations to develop accountability in FinTech lending while expanding financial inclusion.

Volume 69, Number 5 – February 2020

Articles

State Attorneys General as Agents of Police Reform
Jason Mazzone & Stephen Rushin
PDF

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 34 U.S.C. § 12601 to authorize the U.S. attorney general to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (“DOJ”) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year, and in 2017 the Trump administration announced it would no longer enforce § 12601.

In response, some state attorneys general have sought to fill the regulatory gap. These attorneys general claim legal standing under the common law doctrine of parens patriae to seek equitable relief in federal court against police departments within their states for violations of constitutional rights—even without any statutory authority for their lawsuits. Allowing these cases to proceed would give state attorneys general expansive and untapped potential as agents of police reform, with significant implications for police practices and accountability.

This Article provides a cautionary tale about uses of parens patriae by state attorneys general and presents an alternative. It urges that the common law doctrine of parens patriae should not allow state attorneys general to seek equitable relief in federal district court against local police departments engaged in patterns of misconduct. The Article shows that such uses of parens patriae raise numerous doctrinal and policy concerns. Nevertheless, the Article concludes that state attorneys general are uniquely situated to provide a check on abuses by local law enforcement and that they should be given the tools to do so. As an alternative to using common law parens patriae, both Congress and state legislatures should grant state attorneys general explicit statutory authority to seek equitable relief against local police departments. Empowering state attorneys general in this manner has the potential to curb seemingly intractable problems of police violations of constitutional rights.

“Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency
Nick Robinson
PDF

The Foreign Agents Registration Act (“FARA”) is a sweeping and generally underenforced public-disclosure statute. Enacted in 1938, FARA was used during World War II to target fascist propaganda, but by the 1960s its enforcement had shifted to lobbyists and public-relations firms for foreign governments. After the 2016 presidential election, FARA has gained favor among policymakers and prosecutors as a central tool to respond to a range of foreign influence in U.S. politics, including foreign lobbying, electioneering, and disinformation.

This Article argues that FARA’s breadth creates substantial risk that it will be used in a politicized manner. In the past decade, analogous transparency laws in other countries—often justified by reference to FARA—have been weaponized to target dissenting voices with the stigma and burden of registering as a “foreign agent.” This Article undertakes an analysis of FARA to show how its broad and unclear provisions make FARA susceptible to being similarly used in the United States, especially against nonprofits, the media, and public officials. It examines three cases in which FARA was arguably enforced in a politicized manner, explains why strengthening the Act’s enforcement would likely exacerbate this problem, and discusses the Act’s potential constitutional deficiencies under the Supreme Court’s recent First Amendment jurisprudence.

The Article ends by weighing the merits of using FARA to address different types of foreign influence. It posits that transparency provisions like those in FARA are most appropriate, and on strongest ground, when applied to (1) those who clearly are acting at the direction or control of a foreign government or political party; and (2) when the covered activity involves core democratic processes, such as lobbying or electioneering. It warns that using FARA to target disinformation is unlikely to be effective and presents a high risk of politicized abuse. Based on these insights, it suggests three potential strategies for FARA reform.

Notes

A Border Deferred: Structural Safeguards Against Judicial Deference in Immigration National Security Cases
Ali Shan Ali Bhai
PDF

When confronted with cases lying at the intersection of immigration and national security, the judiciary has abided by a consistent principle: the president knows best. Since the late nineteenth century, rather than deciding these cases on the merits, courts have instead deferred to the executive branch. Courts’ reluctance to engage in judicial review of these policies is based on the traditions of special national security deference and the plenary power doctrine. Deference of this kind is not without its proponents, who cite the executive branch’s vast institutional advantages in the realms of immigration and national security. Detractors, on the other hand, contend that this deference renders the president beyond judicial review, creating a blank check for the executive branch to take questionable acts in immigration matters with little to no scrutiny by the legislative or judicial branches. After the Supreme Court granted certiorari to hear a challenge to President Trump’s controversial travel ban case in Trump v. Hawaii, both sides saw it as an opportunity to either preserve or jettison deference to the executive branch in this area.

But with a narrow 5–4 holding, neither side could claim victory. Instead, the future of plenary power remains an open question. To fill the gap, this Note proposes practical safeguards for the judiciary to act as a counterweight to unchecked executive authority in the realm of immigration law.

What’s in the “Black Box”? Balancing Financial Inclusion and Privacy in Digital Consumer Lending
Aaron Chou
PDF

The availability of credit is a foundation of the American economy, but not everyone has an avenue to credit. Financial Technology (“FinTech”) lending plays a sizable role in providing these avenues for Americans who would not otherwise have access to loans and are forced to turn to high-cost loan instruments like payday lending. Most scholars who have contributed to the topic of FinTech lending have focused on the risk of discrimination by Artificial Intelligence within FinTech lending platforms. This Note argues that given the recent history of data breaches in the credit industry, privacy issues should be a part of the larger discussion. Furthermore, balancing privacy with FinTech lending’s goal of financial inclusion will be a task required by regulation such as the Fair Credit Reporting Act.

This Note argues that the number of issues that might arise—the inherent invasiveness of FinTech and the unfairness of the contracts; the biased nature of their algorithms; the lack of transparency; and the danger of data breaches—should ultimately play second fiddle to the goal of financial inclusion. The reason is that although the two priorities of privacy and access to credit seem to offset one another, they actually balance in counterintuitive ways. Even though there are legitimate privacy concerns with the FinTech model, they can be softened by greater transparency. Toward this end, this Note discusses the solutions that have been offered to help eliminate the opacity of FinTech lending’s Artificial Intelligence and ultimately proposes the use of counterfactual explanations to develop accountability in FinTech lending while expanding financial inclusion.