Vol. 106 Issue 4

This Note argues that the Judiciary has erected a fee structure that forecloses essential democratic ends because the fees make public federal court records practically inaccessible. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the Judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely different purposes. In this era, the actual cost of storing and transmitting digital records approaches zero. Hence, PACER should be free.

This Note proceeds as follows. Part I details the evolution of TitleIX from its inception to its use as a critical tool to combat campus sexual assault. Part II discusses the Court’s ruling in Davis and explores whether the framework is appropriate for use in instances of campus sexual assault. Part III offers a recommendation for how courts should structure the Davis inquiry and concludes with how that inquiry would operate in practice.

Under what circumstances can crimes that cross national boundaries be prosecuted in federal court? This question is critical given the increasing frequency with which criminal conduct crosses borders. This Article provides a guide through extant extraterritoriality analysis— warts and all—and then considers what the answer should be.

First, this Article provides a step-by-step roadmap for those seeking to answer the questions of where a crime that spans borders was committed and, if it is deemed to have been committed outside the territory of the United States, whether the applicable statute and Constitution would countenance such a prosecution. This roadmap will reveal the myriad uncertainties and questions that confront courts daily. This Article resolves two of these doctrinal uncertainties: the continuing relevance of the Charming Betsy canon of construction and United States v. Bowman. Courts frequently invoke the Charming Betsy canon of construction to resolve extraterritoriality questions, but that canon is no longer relevant given the Supreme Court’s latest cases. In those cases, the Supreme Court has applied a strong presumption against the extraterritorial application of federal statutes to conduct occurring outside the United States. Federal courts, however, rarely apply this presumption in criminal cases, instead regularly relying on a 1922 Supreme Court case, United States v. Bowman, to hold that federal criminal statutes have extraterritorial reach. But Bowman, given recent developments and viewed in light of the history of the Court’s presumption, is an anachronism.

Second, this Article rebuts the near universal conclusion, reached by both courts and commentators, that extraterritoriality analysis should be the same in civil and criminal cases. Fundamental separation of powers considerations and criminal law’s foundational legality principle require that Congress, not courts, clearly and prospectively specify the content of criminal prohibitions. If there is ambiguity regarding whether a statute applies extraterritorially and in what circumstances, the operational arms of the legality principle, the rule of lenity, and (perhaps) the vagueness doctrine, demand that this ambiguity be resolved in favor of the defendant. In short, where a criminal statute is geoambiguous, a strong presumption against extraterritoriality ought to apply. These same principles do not apply in civil cases, and the rationales for the strong modern presumption that federal civil statutes do not apply to conduct beyond the boundaries of the United States advanced by the Supreme Court and scholars are not convincing.

The current state of affairs—in which courts apply a strong presumption against extraterritoriality in civil cases but decline to do so in criminal cases—is, in short, profoundly wrong-headed. Congress ought to act promptly to enact a general provision that provides uniform guidance on these questions in criminal matters.

Civil trial rates are at an all-time low.Meanwhile,“trial time limits”— judicially imposed limits on the time litigants have to present their evidence at trial—seem to be at an all-time high. We have fewer trials than ever, yet we’re taking aggressive steps to curtail the few that we’ve got. This Article zeroes in on this paradox. It excavates time limits’ origins, tracks their rise, examines their administration, and raises deep questions about their fairness and utility. Trial time limits have, so far, been variously ignored or,alternatively,lauded, as a way to promote juror comprehension and as a tool to make trials cheaper and more efficient. Indeed, one court has gone so far as to call these restrictions “essential”to sensible docket management. This Article challenges that conventional story and cautions against time limits’ regular or reflexive application. In so doing, this Article seeks to begin a broader inquiry into how the American civil trial of the twenty-first century is not only disappearing; the scattered trials that remain are also changing, in subtle and hard-to-quantify but profoundly important ways.

Direct democracy measures at the state level have been disproportionately successful when they restrict minority rights. The use of direct democracy for such purposes contravenes the structure, history, and philosophical underpinnings of our Constitution. Moreover, it poses structural and practical problems in civil rights litigation under the Supreme Court’s intent-based Equal Protection jurisprudence. This Note argues that to ensure that voter might does not define minority rights at the state level, the Supreme Court should adopt a categorical rule under Washington v. Davis and Village of Arlington Heights that obviates plaintiffs’ need to show an intent to discriminate when the policymaking body is the entire voting population of a state.

The TrumpAdministration has pursued policy through deals with the private sector—not as an extraordinary response to extraordinary events, but as part and parcel of the ordinary work of government. Jobs are being onshored through a series of deals with employers. Infrastructure will be built through joint ventures where private parties will own and operate assets like roads and airports after arranging for government financing assistance. The Administration has been staffed with dealmakers and the tone is one of transactional administration.

We evaluate how this transactional administrative state will work as a matter of law. Executive action done by deals, instead of rules or adjudications, exemplifies the presidentialism celebrated by Justice Elena Kagan, Adrian Vermeule, and Eric Posner, but we think it goes too far. Because presidential dealmaking risks dispensing with process and overly empowers the Executive, we identify ways that it can be controlled through principles of transparency, rules of statutory interpretation, and policymaking best practices such as waiting periods before deal execution and equivalent treatment of similarly situated private parties.

The widespread use of encryption has triggered a new step in many criminal investigations: The encryption workaround. We define an encryption workaround as any lawful government effort to reveal unencrypted plaintext of a target’s data that has been concealed by encryption. This Article provides an overview of encryption workarounds. It begins with a taxonomy of the different ways investigators might try to bypass encryption schemes. We classify six kinds of workarounds: find the key, guess the key, compel the key, exploit a flaw in the encryption software, access plaintext while the device is in use, and locate another plaintext copy. For each approach, we consider the practical, technological, and legal hurdles raised by its use.

The remainder of this Article develops lessons about encryption workarounds and the broader public debate about encryption in criminal investigations. First, encryption workarounds are inherently probabilistic. None work every time, and none can be categorically ruled out every time. Second, the different resources required for different workarounds will have significant distributional effects on law enforcement. Some techniques are inexpensive and can be used often by many law enforcement agencies; some are sophisticated or expensive and likely to be used rarely and only by a few. Third, the scope of legal authority to compel third-party assistance will be a continuing challenge. And fourth, the law governing encryption workarounds remains uncertain and underdeveloped. Whether encryption will be a game changer or a speed bump depends on both technological change and the resolution of important legal questions that currently remain unanswered.