Extra Venues for Extraterritorial Crimes? 18 USC § 3238 and Cross-Border Criminal Activity
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I would like to thank Maria Sofia Peña, Joseph Oten, Zoë Ewing, Karan Lala, John Cooper, Chloe Li, Helen Chamberlin, Quinten Rimolde, Jonathan Tao, Luke Henkel, Jackson Cole, Robert Dohrman, Hana Ferrero, Miranda Coombe, and all the other wonderful editors and staff of The University of Chicago Law Review for their insightful feedback and careful editing. I would also like to thank my family for their unconditional support.
In this Comment, Sabrina Huang argues that courts should eliminate the subjective malice requirement for Fourth Amendment malicious prosecution claims. She draws on other constitutional torts that arise during encounters with actors in the criminal justice system to show that a plaintiff-friendly objective standard is more appropriate than a subjective standard. If courts are unwilling to eliminate the malice requirement, the Comment proposes an alternative to the requirement: a burden-shifting test. The intended effects of both proposals are to expand relief to more litigants across jurisdictions, harmonize Fourth Amendment jurisprudence, and deter police and prosecutorial misconduct.
This Case Note offers some direction for handling competing interests in this developing body of law and other complex cases weighing intersecting constitutional rights against governmental interests. Parts I and II provide background information, describing the Sell test and the current state of constitutional and statutory religious protections. Part III critically analyzes how courts, including the Fifth Circuit, have considered religious objections in Sell determinations so far. Because such analysis remains underdeveloped in the courts, Part IV suggests frameworks for coherently integrating Free Exercise doctrine into Sell inquiries based on the “hybrid theory” of constitutional rights.
For helpful comments, I am grateful to participants in the Contracts Section Works-in-Progress Panel at the 2023 AALS Annual Meeting; faculty workshops at George Mason Scalia Law School, Indiana University McKinney Law School, Notre Dame Law School, the University of Florida Law School, the University of Texas Law School, Vanderbilt Law School, and Washington University Law School; the Legal Scholarship Workshop at the University of Chicago; the Workshop on Law, Economics, and Justice at the University of Lucerne; CrimFest; the Decarceration Law Conference; the Junior Business Law Scholars Conference; Markelloquium; and to Ian Ayres, Lisa Bernstein, Sam Bray, Christian Burset, Eric Fish, Rick Garnett, Sherif Girgis, Nadelle Grossman, Daniel Markovits, Jide Nzelibe, J. Mark Ramseyer, Christopher Slobogin, Avishalom Tor, Francisco Urbina, and Julian Velasco. Noah Austin, Zack Beculheimer, Gwendolyn Loop, Savannah Shoffner, Tri Truong, and Steven Tu provided excellent research assistance. Any errors are mine.
Critics of the criminal enforcement system have condemned the expansion and privatization of electronic monitoring, criminal diversion, parole, and probation. But the astonishing perversion of contract involved in these new practices has gone unnoticed. Though incarceration-alternative (IA) contracting is sometimes framed as humane, historical and current context illuminates its coercive nature. IA contracting must be examined under classical contract theory and in light of the history of economic exploitation using criminal enforcement power harnessed to contract, including in the racial peonage system under Jim Crow. This Article documents this systematic underregulation through the first empirical study of legal regimes for IA contracts. To the extent that the theoretical limits of contract are not presently reflected in the common law of contract, regulatory reforms that better regulate seller and government practices might reduce the risk of exploitation.