Current Issue

Articles

“A World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment
James W. Hazel & Christopher Slobogin
PDF

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment “search” does not occur unless police infringe “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this Article, which attempts to gauge societal privacy expectations in this terrain, suggests that laypeople consider law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages, or emails, not only when one’s DNA is held by health care providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information—rather than its nature, the purpose for which it is acquired, or the extent to which its surrender was voluntary—is the primary driver of these intrusiveness perceptions. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.

Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel
Neel U. Sukhatme & Jay Jenkins
PDF

For nearly sixty years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

This Article contends that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor design, as they do not align publicly funded defense attorneys with their clients’ best interests. This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States. These assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

The Article then shows how campaign finance exacerbates this problem. Specifically, we provide empirical evidence that elected trial court judges regularly appoint attorneys who donate to their campaigns as counsel for indigent defendants—a system we call “judicial pay to play.” We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments. These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a twenty-seven-fold return on her donation. Indeed, we find indigent defense appointments can be surprisingly lucrative. Many donor attorneys earn tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.

Worse yet, this apparent quid pro quo between judges and defense attorneys may directly harm defendants. We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences. We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.

Our study is the first empirical analysis of how campaign finance distorts criminal trial court decisionmaking. Though our data is limited to Harris County (Houston), Texas—the nation’s third most populous county—we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others—accept attorney donations to fund their electoral campaigns. Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants.

Notes

Unbalanced: The Case for Removing Title IX’s Private College Admissions Exemption
Katie Lew
PDF

Title IX prohibits any federally funded educational program from discriminating on the basis of sex—except when it comes to private undergraduate admissions decisions. This exemption is the result of lobbying during the 1970s by private colleges that resisted being subject to Title IX out of concern that admitting more women would lower their academic standards, hurt future alumni contributions, and deprive them of the ability to choose the ratio of male to female students. However, nearly fifty years later, the exemption is having unforeseen consequences as many private liberal arts colleges are using their exemption to give admissions preference to male applicants in order to ensure their student body has an equal number of male and female students. This practice, known as “gender balancing,” has been adopted by private colleges due to the fact that women apply to college in higher numbers and tend to apply with stronger high school records than their male peers.

This Note analyzes Title IX’s legislative history and argues that removing the private college admissions exemption would further Title IX’s intended purpose of ensuring that women are neither held to higher admissions standards nor subject to quotas that cap their enrollment. This Note then refutes the arguments made by private college admissions officers both when Title IX was passed and today, in hopes of dispelling the concern that removing the exemption will create overwhelmingly female campuses that will no longer attract students who desire a gender balance for social reasons.

Paint on Any Other Canvas: Closing a Copyright Loophole for Street Art on the Exterior of an Architectural Work
Emma C. Peplow
PDF

Street art is having a moment. Once criminalized and ardently combatted by city governments, street art has become a persistent presence in metropolitan cities, social media feeds, and even art galleries. Often coming in the form of graffiti murals applied to the exterior-facing walls of a building, these works are racking up significant price tags at auction houses and are raising property values in proximate areas. And yet, despite street art’s recent legitimization by the Second Circuit in a historic decision allowing the recovery of significant statutory damages upon the destruction of a work of recognized stature, a loophole in U.S. copyright law threatens to jeopardize these strides.

This Note delves into the conflict between the copyright protections of buildings and the copyright protections for the street art painted on them. A relatively underused amendment to the Copyright Act that provides copyright protections for buildings—the Architectural Works Copyright Protection Act (“AWCPA”)—has jeopardized copyright protections for street artists. It has allowed companies to prominently feature and profit off of the artists’ work in advertising campaigns without the artists seeing any financial return for the use.

Two recent cases have tested this legal loophole, with companies weaponizing the AWCPA—to varying degrees of success—as an affirmative defense to a copyright infringement claim brought on by the use of street art in their advertisements without permission from the artists themselves. These cases represent a significant threat to the financial interests of street artists—and in a way that was not specifically considered by Congress because street art lacked institutional legitimacy at the time of the AWCPA’s enactment. This Note argues the proper way forward is for Congress to amend the AWCPA to create a level playing field for artists, regardless of the medium on which their work exists.

Current Issue

Articles

“A World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment
James W. Hazel & Christopher Slobogin
PDF

Law enforcement agencies are increasingly turning to genetic databases as a way of solving crime, either through requesting the DNA profile of an identified suspect from a database or, more commonly, by matching crime scene DNA with DNA profiles in a database in an attempt to identify a suspect or a family member of a suspect. Neither of these efforts implicates the Fourth Amendment, because the Supreme Court has held that a Fourth Amendment “search” does not occur unless police infringe “expectations of privacy society is prepared to recognize as reasonable” and has construed that phrase narrowly, without reference to society’s actual views. The empirical study presented in this Article, which attempts to gauge societal privacy expectations in this terrain, suggests that laypeople consider law enforcement access to genetic information to be as intrusive as, or more intrusive than, searches of bedrooms, text messages, or emails, not only when one’s DNA is held by health care providers, but also when it is obtained from direct-to-consumer genetic testing companies and public genealogy websites. Our research also suggests that the location of genetic information—rather than its nature, the purpose for which it is acquired, or the extent to which its surrender was voluntary—is the primary driver of these intrusiveness perceptions. Based on this research, we argue that both police access to non-governmental genetic databases and police use of covert methods to collect DNA in the hope of matching crime scene DNA require judicial authorization, although not necessarily a traditional warrant. More broadly, we argue that empirical data about the public’s privacy concerns surrounding law enforcement’s collection of and access to genetic data should be an integral consideration in judicial determinations of how these activities should be regulated by the Constitution.

Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment’s Right to Counsel
Neel U. Sukhatme & Jay Jenkins
PDF

For nearly sixty years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

This Article contends that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor design, as they do not align publicly funded defense attorneys with their clients’ best interests. This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States. These assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

The Article then shows how campaign finance exacerbates this problem. Specifically, we provide empirical evidence that elected trial court judges regularly appoint attorneys who donate to their campaigns as counsel for indigent defendants—a system we call “judicial pay to play.” We find trial judges routinely accept such donations, often as apparent “entry fees” from attorneys who have just become eligible for appointments. These judges, in turn, typically award their donors more than double the cases they award to non-donors, with the average donor attorney earning greater than a twenty-seven-fold return on her donation. Indeed, we find indigent defense appointments can be surprisingly lucrative. Many donor attorneys earn tens or even hundreds of thousands of dollars across the hundreds of cases assigned to them by their donee judges.

Worse yet, this apparent quid pro quo between judges and defense attorneys may directly harm defendants. We find that defense attorneys who donate to a judge are, if anything, less successful than non-donor attorneys in attaining charge reductions, dismissals, and acquittals, or avoiding prison sentences. We contend donor attorneys might underperform simply because they take on so many more cases from their donee judges, and hence spend less time on each matter.

Our study is the first empirical analysis of how campaign finance distorts criminal trial court decisionmaking. Though our data is limited to Harris County (Houston), Texas—the nation’s third most populous county—we show that pay to play is probably endemic across that state. Indeed, similar problems likely affect millions of Americans, as trial judges who control indigent defense assignments in many other states—including California, Georgia, Maryland, Missouri, North Carolina, and Ohio, among others—accept attorney donations to fund their electoral campaigns. Unless substantial reforms are made to address the corrosive influence of campaign finance on criminal defense, the Sixth Amendment’s right to counsel will continue to ring hollow for millions of indigent defendants.

Notes

Unbalanced: The Case for Removing Title IX’s Private College Admissions Exemption
Katie Lew
PDF

Title IX prohibits any federally funded educational program from discriminating on the basis of sex—except when it comes to private undergraduate admissions decisions. This exemption is the result of lobbying during the 1970s by private colleges that resisted being subject to Title IX out of concern that admitting more women would lower their academic standards, hurt future alumni contributions, and deprive them of the ability to choose the ratio of male to female students. However, nearly fifty years later, the exemption is having unforeseen consequences as many private liberal arts colleges are using their exemption to give admissions preference to male applicants in order to ensure their student body has an equal number of male and female students. This practice, known as “gender balancing,” has been adopted by private colleges due to the fact that women apply to college in higher numbers and tend to apply with stronger high school records than their male peers.

This Note analyzes Title IX’s legislative history and argues that removing the private college admissions exemption would further Title IX’s intended purpose of ensuring that women are neither held to higher admissions standards nor subject to quotas that cap their enrollment. This Note then refutes the arguments made by private college admissions officers both when Title IX was passed and today, in hopes of dispelling the concern that removing the exemption will create overwhelmingly female campuses that will no longer attract students who desire a gender balance for social reasons.

Paint on Any Other Canvas: Closing a Copyright Loophole for Street Art on the Exterior of an Architectural Work
Emma C. Peplow
PDF

Street art is having a moment. Once criminalized and ardently combatted by city governments, street art has become a persistent presence in metropolitan cities, social media feeds, and even art galleries. Often coming in the form of graffiti murals applied to the exterior-facing walls of a building, these works are racking up significant price tags at auction houses and are raising property values in proximate areas. And yet, despite street art’s recent legitimization by the Second Circuit in a historic decision allowing the recovery of significant statutory damages upon the destruction of a work of recognized stature, a loophole in U.S. copyright law threatens to jeopardize these strides.

This Note delves into the conflict between the copyright protections of buildings and the copyright protections for the street art painted on them. A relatively underused amendment to the Copyright Act that provides copyright protections for buildings—the Architectural Works Copyright Protection Act (“AWCPA”)—has jeopardized copyright protections for street artists. It has allowed companies to prominently feature and profit off of the artists’ work in advertising campaigns without the artists seeing any financial return for the use.

Two recent cases have tested this legal loophole, with companies weaponizing the AWCPA—to varying degrees of success—as an affirmative defense to a copyright infringement claim brought on by the use of street art in their advertisements without permission from the artists themselves. These cases represent a significant threat to the financial interests of street artists—and in a way that was not specifically considered by Congress because street art lacked institutional legitimacy at the time of the AWCPA’s enactment. This Note argues the proper way forward is for Congress to amend the AWCPA to create a level playing field for artists, regardless of the medium on which their work exists.