How the Rational Basis Test Protects Policing for Profit

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the government’s position. This article explains these challenges, outlines the critiques of rational basis review, and argues that courts should abandon the use of this standard in cases in which punitive sanctions fall more heavily on the poor than others.

Remarks

In both Greek and Roman mythology, a Hydra guards the entrance to the underworld. For those who don’t remember their mythology, a Hydra is a multi-headed serpent who exhales poisonous fumes. If you get close enough to the Hydra and are able to cut off one of its heads, two grow back in its place. Slaying the Hydra was number two on Hercules’ famous list of Labors. He was successful, but not without a fierce struggle. As you’ve heard over the last four days, fines and fees are Hydralike. Fines are imposed for almost every minor offense — misdemeanors, infractions, and code violations — and fees are assessed at virtually every step of the criminal legal process. For every fine, fee, or particularly egregious collection practice that is stopped, dozens of others that are equally harmful remain in place. The collateral consequences of fines and fees wreak havoc on the lives of individuals and families. The impact that these policies have on the economic health and stability of communities — particularly communities of color — is truly poisonous. Too often it feels like it will take a Herculean effort to end the regime of monetary sanctions.

Seamen, Railroad Employees, and Uber Drivers: Applying the Section 1 Exemption in the Federal Arbitration Ace to Rideshare Drivers

Section 1 of the Federal Arbitration Act (FAA or the Act) exempts “seamen, railroad employees, [and] any other class of workers engaged in foreign or interstate commerce” from arbitration. In 2019, the Supreme Court held in New Prime Inc. v. Oliveira that this provision exempted independent contractors as well as employees. This decision expanded the reach of the section 1 exemption and may affect the relationship between ridesharing companies, such as Uber, and their drivers. Previously, ridesharing companies argued that courts must enforce the arbitration clauses in their employment contracts because their workers were independent contractors and, therefore, section 1 was inapplicable. Since this argument is now prohibited by the holding in New Prime, rideshare drivers have an opportunity to avoid arbitration using the section 1 exemption. But they still face legal difficulties because of the narrow construction of the exemption employed by courts. This Note argues that the current interpretation of the exemption, which focuses on the physical movement of goods across state lines, is incongruent with the text and history of the FAA and that courts should broaden the exemption to include rideshare drivers.

Smart Cars, Telematics and Repair

Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the market for repair services. Our analysis highlights two main areas where the use of telematics for vehicle diagnostics may pose a threat to competition and consumer choice. First, we focus on the manner by which manufacturers communicate with their customers via the telematics system. Due to the special relationship between car manufacturers and their consumers, which is often based on trust and loyalty, alongside the “captive audience” status of drivers, we argue that communications emanating from the car’s telematics system could be deceptive. Second, we explore the negative impact that the shift away from on-board diagnostics to telematics could have on independent repair shops’ access to diagnostic information. Fortunately, the law can adapt to keep pace with these new technological and commercial developments. This Article articulates the combined multi-prong, multi-agency policy approach needed to maintain an effective right to repair cars in the new age of telematics. Among other things, our analysis supports an update of state consumer protection legislation and an increased policing by the Federal Trade Commission of practices employed by car manufacturers. In addition, we highlight the need to consider certain amendments to intellectual property laws that effectively aid car manufacturers in maintaining exclusive control over their telematics systems and diagnostic data.

Conflict Preemption: A Remedy for the Disparate Impact of Crime-Free Nuisance Ordinances

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various anti-discrimination protections presents many challenges. Less than five percent of all discrimination plaintiffs will achieve relief, and eighty-six percent of discrimination claims end in dismissals. Professor Katie Eyer, an anti-discrimination legal scholar, has advocated for increasing the use of “extra-discrimination remedies,” litigation-based approaches that are not rooted in anti-discrimination laws. This Note explores one potential extra-discrimination remedy that could be used to challenge crime-free nuisance ordinances: conflict preemption. Crime-free nuisance ordinances that are not tailored to state landlord-tenant laws’ grounds for eviction may be in conflict with, and preempted by, state law. This Note also recommends that fair housing advocates collaborate with landlord associations when challenging crime-free nuisance ordinances. Although the interests of landlords and tenants often conflict, both groups are harmed by municipalities that enact crime-free nuisance ordinances.

Prosecuting Executive Branch Wrongdoing

Attorney General William Barr’s handling of Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election was undeniably controversial and raised meaningful questions regarding the impartiality of the Department of Justice. Yet, Barr’s conduct, which occurred at the conclusion of the Mueller investigation, was merely the caboose at the end of a series of controversies that were coupled together from the outset of the investigation. Ensnarled in dissonance from its inception, the Mueller investigation was dogged by controversies that ultimately compromised its legitimacy. Public trust of criminal investigations of executive branch wrongdoing requires prosecutorial independence. To further this critical objective, an investigative and prosecutorial structure must be implemented that grants a prosecutor sufficient latitude to pursue independent investigations while reigning in the exercise of runaway discretion. Indeed, at no time since Watergate has there been such a clear need for reform. This Article will explain why many of the controversies that beset the Mueller investigation can be sourced to the Special Counsel regulations—the rules that governed his appointment, as well as his investigative and prosecutorial authority. And it will explain why many of these ills can be ameliorated by enacting a modified and innovative version of the expired Independent Counsel Statute.

Prohibiting the Punishment of Poverty: The Abolition of the Wealth-Based Criminal Disenfranchisement

The majority of U.S. states disenfranchise formerly incarcerated individuals because of their poverty by conditioning re-enfranchisement on the full payment of legal financial obligations. This Note discusses the practice of wealth-based criminal disenfranchisement where the inability to pay legal financial obligations, including fines, fees, restitution, interest payments, court debts, and other economic penalties, prohibits low-income, formerly incarcerated individuals from voting. This Note argues this issue has not been adequately addressed due to unsuccessful legislative reforms and failed legal challenges. An examination of state policies, federal and state legislative reforms, and litigation shows that a more drastic state legislative solution is needed to ensure that no individual is prevented from voting because of their poverty. This Note argues wealth-based criminal disenfranchisement should be completely abolished.

Debt to Society: The Role of Fines & Fees Reform in Dismantling the Carceral State

Fines and fees that result from contact with the criminal legal system serve as a suffocating debt for those against whom they are assessed. Many states have countless laws that require taxes, fines, and fees to be assessed against individuals involved in the criminal legal system at various stages of the criminal legal process, and they have the effect of permanently trapping individuals within the system. In Tennessee, for example, these debts, which can accumulate to over $10,000 in a single criminal case, stand in the way of individuals getting their criminal records expunged, keeping valid driver’s licenses, and restoring their voting rights, among other things. However, as in many other states, Tennessee’s legislature is decidedly hostile to the poor (particularly when poor people’s issues compete with the perceived financial health of government entities), and the urgency of the problem cannot wait for unwilling lawmakers to realize the change that thousands of people need. Using Tennessee as a case study and drawing on the author’s experiences working within the State’s system, this Article considers ways to effectively advocate for the elimination of court debt as a punishment for poverty. First, it provides an abbreviated history of court debt and explains how that history still impacts individuals today. This Article also draws upon the author’s experiences representing individuals in court, appearing before judges, and collaborating with other stakeholders to show the difficulty of achieving a state-wide movement for reform in Tennessee’s current political climate, a problem not unique to this state. Finally, the Article concludes by discussing how local actors can work within current legal frameworks to protect people from extortionist fine and fee policies and limit the harmful growth of the criminal legal system.

A Fresh Start: The Evolving Use of Juvenile Records in College Admissions

Questions about criminal and juvenile records in the college application process are common and frequently fail to account for the unique characteristics of juvenile justice systems. The ways in which colleges and universities ask about juvenile records often encourage applicants to disclose information in spite of statutory protections. These questions fly in the face of the public policy underlying a range of legal safeguards that are intended to help individuals with records from juvenile systems in moving forward and receiving a second chance. In recent years, a series of legislative and institutional changes have begun to restrict how colleges and universities may ask about criminal and juvenile records. Four states have passed laws limiting how criminal history may be used in the admissions process. The Common Application has moved to make asking about criminal history optional, and now gives institutions more flexibility in deciding how to phrase criminal history questions. This Article presents a first-of-its-kind empirical analysis of how the more than 800 U.S. schools that use the Common Application, and schools in the first states to restrict asking about criminal history, have responded to these changes. While these reforms have affected how frequently colleges and universities ask about criminal history, they continue to leave the door open for some postsecondary institutions to push applicants to disclose juvenile records. The growing movement to restrict use of criminal history in the college admissions process presents a critical opportunity to reconsider the role that postsecondary systems should play in supporting the rehabilitative goals of juvenile justice systems. To that end, this Article concludes by providing recommendations for legislative and institutional language that can more effectively ensure that individuals with juvenile records are given a true second chance and a meaningful opportunity to earn postsecondary degrees.

What the Great Recession Revealed About Taxation by Citation and What Can Be Done About It

In recent years, the issue of “taxation by citation” has grown in national prominence. It is generally defined as municipal revenue generation through fines and fees that transcends a clear relationship to public health and safety and serves more as a revenue generating device. According to critics, taxation by citation creates conflicts of interest, violates the rights of those with low income, and distorts law enforcement priorities. Municipal leaders reject such criticisms by denying taxation by citation even exists. To date, research findings have been mixed on whether cities practice taxation by citation. This Article examines whether there is a relationship between fines and fees revenue generation and broader economic trends. If there is a relationship, that would suggest cities do, indeed, use municipal ordinance enforcement and the resulting fines and fees as a means of revenue generation beyond public health and safety. We use a panel of 1,471 cities from the Census of Governments spanning 2005 through 2017, which captures the Great Recession of 2008. Fixed-effects regression analyses indicate a significant relationship between the fines and fees revenue trend and the Great Recession. We conclude by recommending legal reforms to eliminate the financial incentives to engage in taxation by citation. These include eliminating municipal courts, capping the revenue cities may retain from ordinance enforcement, and ensuring judicial independence from municipal executive and legislative branches.