Extra Venues for Extraterritorial Crimes? 18 USC § 3238 and Cross-Border Criminal Activity
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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.
I would like to thank Professor Anup Malani, Professor Jared Mayer, and the editors and staff of the University of Chicago Law Review for their thoughtful input and careful review.
The latest development in class action litigation is the “future stakes settlement.” Under this novel mechanism, unveiled in the settlement proposal to end a privacy law class action lawsuit against the startup Clearview AI, a defendant grants a privately traded equity stake to the class in exchange for a release of all claims.
Future stakes settlements, though similar to existing mechanisms in class action and bankruptcy law, offer distinct benefits and costs. Through a future stakes settlement, the class may recover against a cashless defendant and receive a larger payout than would be possible through a traditional cash damages fund. But this recovery is uncertain, as the value of a future stake can fluctuate. Furthermore, by transforming injured parties into shareholders, future stakes settlements pose serious moral quandaries.
Existing guidance for settlement agreements under Federal Rule of Civil Procedure 23(e) is insufficient to handle the high degree of risk associated with future stakes settlements. This Comment recommends additional standards that courts should apply when evaluating these settlements. Through these additions, courts can prevent defendant gamesmanship, ensure future stakes settlements are fair to the class, and fulfill the dual purposes of compensation and regulation in class actions.