When Business Becomes Personal: Supreme Court Upends a Perceived Barrier to Suing Corporations.

*Shanae T. Jones

I. Introduction

Imagine buying an air fryer in your home state of New York. One day, the air fryer explodes in your kitchen, causing significant damage. Remembering that the manufacturer operates a small factory in the neighboring state of New Jersey, you file suit against the corporation there. To your dismay,  the court dismisses your suit for lack of personal jurisdiction because the corporation can only be sued in Delaware where it is incorporated,[1] in Texas where it is headquartered,[2] or in a state where there is a specific connection between the corporation’s activities within that state and your claim.[3] What recourse does the judicial system provide to you?

Precedent suggests that prosecution of this hypothetical case requires you to refile the claim in Delaware or Texas.[4] In the wake of the Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co.,[5] however, the longstanding barrier described in the hypothetical may fade as corporations find themselves susceptible to litigation for any reason in any state where they are registered to do business. In Mallory, the Supreme Court upheld a Pennsylvania law that establishes personal jurisdiction over any out-of-state corporation registered to do business in that state.[6] By finding that consent-by-registration statutes do not offend due process,[7] the Supreme Court deviated from its corporation-centered jurisprudence in a way that could impact judicial economy and interstate commerce.

II. Personal Jurisdiction over Corporations Before Mallory

The Court’s earlier jurisprudence reveals two types of personal jurisdiction, both of which allow courts to bind an out-of-state corporation: general jurisdiction and specific jurisdiction.[8] The Court has sought to define each type of personal jurisdiction in a way that comports with the due process concerns.[9] General jurisdiction refers to a forum’s ability to decide any case or controversy involving a defendant regardless of the cause of action.[10] General jurisdiction exists when a corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”[11] Courts have found corporations “at home” for the purposes of establishing general jurisdiction in their state of incorporation and where they have their principal place of business—i.e. their headquarters.[12]  Proponents of this approach note that bringing a claim in either location comports with due process because the corporation has sufficient notice that they could become subject to the jurisdiction of those states’ courts.[13] Opponents have called it a “massive gift to corporations” that limits jurisdiction to “just one or two states for most U.S. corporations.”[14] Attempts to establish general jurisdiction over an out-of-state corporation—meaning one that is neither incorporated nor headquartered in the forum state—have proven quite difficult.[15]

Alternatively, specific jurisdiction enables a court to exercise personal jurisdiction over an out-of-state corporation where the corporation has “certain minimum contacts with the state” and the dispute relates to or arises out of those contacts.[16] The development of the minimum contacts standard has afforded jurisdictional protections to out-of-state corporations by limiting where claims can be brought against them.[17]

III. Mallory Cements the Consent-Based Approach

Robert Mallory, a Virginia resident, sued Norfolk Southern, a corporation incorporated and headquartered in Virginia, in Pennsylvania state court for injuries sustained in Virginia and Ohio.[18] In response to Norfolk’s motion to dismiss for lack of personal jurisdiction, Pennsylvania’s courts ruled in favor of the corporation, finding jurisdiction improper because the consent-by-registration law did not comport with due process.[19] The Supreme Court disagreed, finding that due process is not offended where Norfolk Southern filed the registration paperwork and “appreciated the jurisdictional consequences attending its actions.”[20]  

The plain language in Mallory reveals that suing a corporation “at home” is not the only way to establish general jurisdiction; rather, a corporation can consent to the general jurisdiction of the courts of other states.[21] Given the significant limitations on establishing personal jurisdiction over an out-of-state corporation in earlier jurisprudence,[22] one might consider the Court’s decision in Mallory a deviation from its practice of shielding corporate defendants. The Court, however, views the decision as more of a clarification of its personal jurisdiction jurisprudence than a broadening thereof.[23] The Mallory plurality cites Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co. to support the position that the consent-based approach is not new.[24] There, the Court found a consent-by-registration statute properly established personal jurisdiction over the out-of-state defendant.[25]

IV. Implications

Whether courts frame Mallory as the resurgence of a preexisting path to personal jurisdiction or the creation of a new path, the implications of states adopting consent-by-registration laws are clear. Notably, supplementing the at-home approach with the consent-based approach weakens the jurisdictional protections afforded to corporate defendants by the minimum contacts standard.[26] However, specific jurisdiction jurisprudence limits the forum choices available to a plaintiff against an out-of-state corporation in a way that creates inequities in access to the judiciary between corporations and individuals.[27] Consent-by-registration laws restore access to the courts for individuals.

Increased access to the judiciary directly affects judicial economy.[28] One foreseeable consequence of consent-by-registration laws is a rise in forum shopping amongst plaintiffs, as the increase in courts with general jurisdiction will increase choice-of-forum.[29] While courts in the United States largely disfavor forum shopping,[30] the process does not violate due process.[31] Corporations engage in forum shopping through tactics like moving their headquarters[32] and drafting forum selection clauses[33] to avoid availing themselves to litigation in unfavorable forums­–a practice supported by courts.[34] In broadening choice-of-forum for individual plaintiffs, Mallory balances the scales that had previously been tilted in favor of protecting corporations.

A second foreseeable impact of Mallory on judicial economy is a spike in litigation tourism—the practice of suing an out-of-state defendant in a friendly venue without regard to connection with the forum state.[35] In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, the Court shot down an attempt at litigation tourism where the plaintiffs tried to sue in state court under specific jurisdiction for a matter unrelated to the defendant’s activities in that state.[36] Unlike Bristol, Mallory deals with general jurisdiction, which, by definition applies to any matter concerning the defendant without regard to connection with the forum state.[37] The plurality in Mallory found no due process concern with litigation tourism, instead stating that it has jurisprudential roots in the modern application “transitory action” or “tag jurisdiction” to individuals where “a suit could be maintained by anyone on any claim in any place the defendant could be found.”[38]

In a concurring opinion, Justice Alito raised a concern that consent-by-registration laws violate the Dormant Commerce Clause.[39] While the Court has struck down state legislation that unduly restricts interstate commerce,[40] Mallory left the question open for the Pennsylvania court to address on remand.[41]

V. Conclusions

For years, the Supreme Court’s approach to establishing personal jurisdiction over out-of-state corporations has afforded protections to corporations.[42] The Mallory decision’s resurrection of the consent-based approach paves the way for states to simultaneously increase access to the judiciary for individual plaintiffs and increase accountability for corporate defendants.[43]

*Shanae T. Jones is a third-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and a Law Scholar for Professor Lynch’s Civil Procedure I class.  In addition to being a law student, Shanae is a licensed social worker, employed in public child welfare. Shanae was a summer associate at Ballard Spahr during the summer of 2023 and looks forward to returning to the firm in the upcoming summer of 2024.

[1] See Stephen C. Yeazall et al., Civil Procedure 65 (11th ed. 2023).

[2] See id.

[3] See id. at 66.  

[4] See, e.g., Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).

[5] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).

[6] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).

[7] Id. at 134–36 (finding no valid due process issue).

[8] Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017).

[9] Yeazall et al., supra note 1, at 5.

[10] Lea Brilmayer et al., A General Look at General Juris­diction, 66 Tex. L. Rev. 721, 727 (1988).

[11] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 317 (1945)) (emphasis added).

[12] Brilmayer et al., supra note 8, at 733–34.

[13] See id.

[14] Elizabeth Pollman, The Supreme Court and the Pro-Business Paradox, 135 Harv. L. Rev. 220, 234–35 (2021).

[15] See, e.g., Goodyear Dunlop Tires Operations, 564 U.S. 915 (holding that a state may not exercise general personal jurisdiction over a foreign subsidiary of a U.S. parent corporation where the subsidiary itself lacks continuous and systematic business contacts with the state); Daimler AG v. Bauman, 571 U.S. 117 (2014) (finding no general jurisdiction where out-of-state corporation did $192 billion worth of business in the forum state).

[16] Int’l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).

[17] See, e.g., Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cnty., 582 U.S. 255 (2017) (finding no specific jurisdiction where nonresident plaintiffs are harmed outside of the state); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (holding that the “stream of commerce” standard does not satisfy minimum contacts for specific jurisdiction); J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011) (declining to find specific jurisdiction over a foreign corporation that directed marketing at the U.S., but not at forum state); Shaffer v. Heitner, 433 U.S. 186 (1977) (stating that a state where property is located will usually have jurisdiction over claims where the property itself is the source of the underlying controversy, but having property in the state alone doesn’t satisfy minimum contacts for other claims).

[18] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 126 (2023).

[19] Id. at 126–27.

[20] Id. at 144.

[21] Id. at 135–36, 138.

[22] See supra Part II.

[23] Mallory, 600 U.S. at 137.  

[24] Id. at 131–32.

[25] Id. at 133.

[26] See id. at 147 (noting that without its consent, the defendant may be protected from the jurisdictional powers of the court).

[27]  See Todd D. Peterson, Categorical Confusion in Personal Jurisdiction Law, 76 Wash. & Lee L. Rev. 655, 762 (2019).

[28] See David M. Axelrod, The Importance of Judicial Economy, Daily J. (May 7, 2021), https://www.dailyjournal.com/mcle/942-the-importance-of-judicial-economy (noting that judicial economy is more important as caseloads increase).

[29] See generally, Forum Shopping Reconsidered, Note, 103 Harv. L. Rev. 1677, 1677 (1990) (defining “forum shopping”).

[30] Id.

[31] See Mallory, 600 U.S. at 154 (Alito, J., concurring) (“[W]e have never held that the Due Process Clause protects against forum shopping.”).

[32] Patrick Mullinger, The Mall of Litigation: The Dangers and Benefits of Forum Shopping in American Jurisprudence, UCLA L. Rev. (Nov. 17, 2021), https://uclawreview.org/2021/11/17/the-mall-of-litigation-the-dangers-and-benefits-of-forum-shopping-in-american-jurisprudence/#_ftn23.  

[33] See generally Symeon C. Symeonides, What Law Governs Forum Selection Clauses, 78 La. L. Rev. 1119, 1120 (2018) (defining “forum selection clause” as . . .).

[34] See David K. Duffee, et al., Keeping Current: U.S. Supreme Court Reaffirms that Forum-Selection Clauses Are Presumptively Enforceable, Am. Bar Assoc. https://www.americanbar.org/groups/business_law/resources/business-law-today/2014-january/keeping-current-u-s-supreme-court/.

[35] Mary A. Mellow, et al., Supreme Court Strikes Another Blow to Litigation Tourism in Bristol-Myers Squibb, Def. Counsel J. April 2018, at 1, 2.

[36] Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., S.F. Cnty., 582 U.S. 255, 258 (2017).

[37] See supra note 10 and accompanying text.

[38] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 128–29 (2023).

[39] Id. at 157­–60 (Alito, J. concurring).

[40] See, e.g., City of Phila. v. New Jersey, 437 U.S. 617, 628 (1978).

[41] Id. at 150 (Alito, J. concurring).

[42] See supra Part II.

[43] See supra Part IV.

Corporate Accountability from Earth to Orbit: A New Era in Outer Space

“Earth is the cradle of man, and man must leave his cradle to grow. The pollution of outer space threatens this evolution.”[1]

*Dallon Danforth

I. Introduction

Mankind’s reach extended beyond planet Earth for the first time on October 4, 1957, with the Soviet Union’s historic launch of the Sputnik 1 satellite.[2] Following the launch of Sputnik 1, humanity’s presence in outer space increased dramatically. Where only a single satellite occupied Earth’s orbit in 1957, over 6,500 satellites now occupy that same space today.[3] The road to this milestone was wrought with mistakes that inadvertently littered the Earth’s upper atmosphere with hazardous debris.[4] In the nearly seven decades following Sputnik 1’s launch, the United States never issued a financial penalty to a private company for the consequences of its failed operations in outer space.[5] That is, until October 2, 2023, when the Federal Communications Commission (FCC) established a new regulatory era in outer space by issuing the first-ever fine to a private company for its improper management of a proprietary satellite.[6]  Unfortunately, the novel fine is likely insufficient to supplement the considerable gap in existing outer space regulations.  

II. Background

Pursuant to 47 U.S.C. § 721,[7] the FCC fined Dish Network (Dish) $150,000 for its negligent operation of the EchoStar-7 satellite.[8] Dish incurred the penalty after failing to increase EchoStar-7’s elevation by an additional 178 kilometers above its final orbital altitude after the satellite prematurely depleted its remaining fuel reserves.[9] In an unofficial announcement, the FCC stated that EchoStar-7’s final position could pose concerns about orbital debris[10] which, in turn, may be “devastating” for mankind’s continued presence in outer space.[11]

III. Analysis

Given the gravity[12] of the consequences that may result from Dish’s admitted negligence, the question then becomes whether $150,000 is an appropriate penalty. If the purpose of a penalty is to discourage similar conduct, then the costs incurred should actually impose a financial detriment. As a preliminary metric, Dish generated $16.68 billion of revenue in 2022 alone, which translated to $2.30 billion of profit.[13] The FCC’s penalty accounts for approximately 0.00089% of Dish’s 2022 revenue and 0.0065% of profit for that same year.[14] In comparison, NASA estimates that the cost of removing orbital debris like that of EchoStar-7 can vary from $5.5 million to $20 million per single expedition, depending on the method of removal.[15] But even those expenses are negligible compared to the potential costs of a “space debris apocalypse” (also known as a “Kessler syndrome episode”) where Earth’s upper atmosphere becomes so crowded with misplaced, high velocity orbital debris that space-faring operations become infeasible for extended, if not indefinite, periods of time.[16] The financial ramifications of such an incident could be massive; mankind’s activities in outer space commanded a value of $469 billion in 2022, with the majority of that activity attributed to commercial companies like Dish.[17] Experts anticipate that humanity’s activities in outer space will be worth $1 trillion by 2040.[18] Space debris and negligent satellite operations like Dish’s EchoStar-7 failure jeopardize not only this projected financial growth, but the continued operation of the space-faring industry as a whole.[19] Under these considerations, a one-time penalty of $150,000 does not reflect the severity of Dish Network’s conduct.

Nevertheless, the first-of-its-kind penalty signals the beginning of a necessary change in the regulation of outer space. Humanity’s activities in outer space are currently subject to minimal regulation, and the few policies that do exist “do not address private sector activities” and are  largely self-executing.[20] Given the “rapid rise of for-profit companies in space,” the FCC’s novel fine arrives at an opportune moment in space-based commerce.[21] For example, the for-profit company SpaceX owns and operates more than half of all active satellites in outer space—more than every government on planet Earth combined.[22] Despite SpaceX’s overwhelming dominance, the company’s presence in outer space remains largely unregulated, and the company has never been fined for its non-terrestrial operations.[23] To that end, Dr. Jonathan McDowell of the Harvard-Smithsonian Center for Astrophysics elaborated that “[t]he speed of commercial development is much faster than the speed of regulation change . . . There needs to be an overhaul of space traffic management and space regulation generally to cope with these massive commercial projects.”[24] Unfortunately, the FCC’s fine to Dish Network does not even approach the type of overhaul that Dr. McDowell urges.

IV. Conclusion

The private sector will only further increase humanity’s presence in outer space. In doing so, the United States must pass additional regulations to properly manage the accumulating amount of orbital debris. The FCC’s fine to Dish Network marks a necessary new era in the regulation of corporate activities occurring within outer space, but the value of the fine itself does not take the hardline stance necessary to control the rapidly growing industry.

*Dallon Danforth is a second-year student at the University of Baltimore School of Law and a Staff Editor for the University of Baltimore Law Review. He also serves as President of the Caroll Inn Chapter of the Phi Delta Phi International Legal Honor Society and is a law clerk at Greenberg Law. He would like to thank the Law Review staff for the opportunity to publish this piece.

[1] Orbital Space Debris, 1988: Hearing Before the Subcomm. on Space Sci. and Applications of the H. Comm. on Sci., Space, and Tech., 100th Cong., 2nd Sess. 112,at 82 (1988)(statement of Nicholas L. Johnson, Advisory Scientist, Teledyne Brown Engineering).

[2] The Launch of Sputnik, 1957, U.S. Dep’t of St. Archive, https://2001-2009.state.gov/r/pa/ho/time/lw/103729.htm (last visited Oct. 20, 2023).

[3] Id.; UCS Satellite Database, In-depth Details on the 6,718 Currently Orbiting Earth, Union of Concerned Scientists (Jan. 1, 2023), https://www.ucsusa.org/resources/satellite-database.

[4] See, e.g., Historical Log, Mars Exploration, NASA, https://mars.nasa.gov/mars-exploration/missions/historical-log/ (last visited Oct. 20, 2023); see also, Nikolai Khlystov, Space Debris is A Growing Problem. These Leaders Have A Plan to Tackle It, World Econ. F. (June 13, 2023), https://www.weforum.org/agenda/2023/06/orbital-debris-space-junk-removal (“[T]here are approximately 1 million pieces [of orbital debris] . . . travel[ling] several times faster than a bullet. A collision between the debris or with active satellites could be devastating, destroying entire missions or creating large new debris fields.”); see also Gunnar Leinberg, Orbital Space Debris, 4 J.L. & Tech. 93, 97 (1989) (explaining that pieces of orbital debris just 10cm or smaller are capable of causing “catastrophic damage.”).    

[5] See Jennifer Hassan, Space Junk Crackdown Intensifies As FCC Gives First-Ever Fine to Dish, Wash. Post (Oct. 3, 2023, 8:50 AM), https://www.washingtonpost.com/technology/2023/10/03/space-junk-dish-network-fine-debris/.  

[6] See id.

[7] See 47 U.S.C. § 721(c)(11) (2023) (authorizing the FCC to enforce the Communications Act of 1934).

[8] Press Release, Fed. Commc’ns Comm’n, FCC Takes First Space Debris Enforcement Action: Settles Investigation of DISH for Failing to Comply with Deorbiting Plan (Oct. 2, 2023), https://docs.fcc.gov/public/attachments/DOC-397412A1.pdf [hereinafter FCC Statement]. Apart from the $150,000 fine, Dish Network was also obligated admit liability for the mismanagement of EchoStar-7 and adhere to an FCC-imposed “compliance plan.” Id.

[9] Id.; see also Jackie Wattles, Space Debris Investigation Results in Fine and An ‘Admission of Liability’ by Satellite TV Company, CNN World (Oct. 2, 2023, 10:16 PM), https://www.cnn.com/2023/10/02/world/space-debris-fine-dish-fcc-scn/index.html (“Geostationary orbit is located well above low-Earth orbit, the area of space that is home to the ISS and thousands of small satellites including SpaceX’s Starlink network, as well as the most problematic space debris.”).

[10] FCC Statement, supra note 8.

[11] Khlystov, supra note 4.

[12] Or rather, the lack thereof.

[13] DISH Network Reports Fourth Quarter, Year-end 2022 Financial Results, Dish Network (Feb. 23, 2023), https://ir.dish.com/news-releases/news-release-details/dish-network-reports-fourth-quarter-year-end-2022-financial (official press release).

[14] See id.

[15] Andrew Petro & Howard Ashley, Cost Estimates for Removal of Orbital Debris, NASA Tech. Reps. Server (Jan. 1, 1989), https://ntrs.nasa.gov/citations/19900030959.

[16] For an introductory analysis of the current orbital debris situation, see Tereza Pultarova, 6 Types of Objects That Could Cause Space Debris Apocalypse, Space.com (Feb. 19, 2023), https://www.space.com/most-dangerous-types-space-junk (“The space around our planet is getting cluttered. Thousands of satellites and millions of out-of-control fragments of space debris hurtle high above our heads, threatening to collide.”). In early 2023, for example, two “huge pieces of space junk” almost caused the “worst case scenario” when each piece of orbital debris came within twenty feet of colliding. Id. Had the two pieces collided, the incident “could have spawned thousands of dangerous debris fragments that would have stayed in orbit for centuries.” Id.

[17] Space Foundation Editorial Team, Space Foundation Releases The Space Report 2022 Q2 Showing Growth of Global Space Economy, Space Found. (July 27, 2022), https://www.spacefoundation.org/2022/07/27/the-space-report-2022-q2/ (official press release).

[18] Michael Sheetz, The Space Industry Is on Its Way to Reach $1 Trillion in Revenue by 2040, Citi Says, CNBC (May 21, 2022, 7:00 AM), https://www.cnbc.com/2022/05/21/space-industry-is-on-its-way-to-1-trillion-in-revenue-by-2040-citi.html.

[19] See Pultarova, supra note 16 (“The sheer size of [some pieces of orbital debris] means that a collision would produce an enormous amount of space debris fragments that would . . . possibly [trigger] the Kessler syndrome, a dreaded scenario of unstoppable cascades of collisions such as the one depicted in the 2013 Oscar-winning movie ‘Gravity.’”).

[20] See Henry R. Hertzfeld et al., Outer Space: Ungoverned or Lacking Effective Governance? New Approaches to Managing Human Activities in Space, SAIS Rev. Int’l Aff., Summer-Fall 2016, at 15, 16, 23.

[21] Id. at 16.

[22] Lisa Grossman, Half of All Active Satellites Are Now from SpaceX. Here’s Why That May Be A Problem, Sci. News (Mar. 3, 2023, 9:00 AM), https://www.sciencenews.org/article/satellites-spacex-problem-space-pollution (noting that “[t]he number of satellites in low Earth orbit is increasing faster than regulations can keep up.”).

[23] See Hertzfeld et al., supra note 20, at 16.

[24] Id.

“To Be Determined” – Notice Requirements in Immigration Cases

*Rory Rightmyer

Moris Esmelis Campos-Chaves, native and citizen of El Salvador, arrived in the United States in January 2005.[1] Since then, he formed a family here, and is father to two U.S. citizen children.[2] He consistently pays his taxes and has no criminal record.[3] Shortly after arriving, U.S. Citizenship and Immigration Services (USCIS) served him a document informing him that he would need to attend a hearing to determine if he should be removed from the U.S.[4] This initial notice did not inform Mr. Campos-Chaves of the time or date of his hearing. That information arrived months later in a notice “changing” his hearing to a specific date and time. Mr. Campos-Chaves did not go to that hearing. Because of his absence, the immigration judge at that hearing ordered him removed “in absentia”—without his presence.[5] Now, more than a decade after entering the U.S., Mr. Campos-Chaves’ case is the centerpiece of a circuit split that raises questions of fairness when the government issues a defective notice to an immigrant.

This piece first introduces the legal framework providing notice to non-citizens[6] awaiting a hearing before outlining the arguments on either side of a circuit split straddling these two interpretations, and finally presents the rationale argued in a recently heard Supreme Court case that seeks to resolve this split.

I. Statutory Process

Title 8, Chapter 12 of the U.S. Code controls immigration processes.[7] This Chapter entitles non-citizens to a hearing prior to removal from the United States.[8] That hearing must be either in person or, with the consent of the parties, over video or telephone conference.[9] In addition, non-citizens must receive proper notice of this hearing.[10] Congress requires this “notice to appear” (NTA) to contain seven particular pieces of information, including the time and place where the hearing will be held.[11] Valid NTAs must present all seven items in a single document.[12] If the time or place is subsequently changed, the government must notify the recipient.[13]

However, our immigration system is severely backlogged.[14] Wait times for cases routinely exceed six months and can continue for years.[15] Because of this, many non-citizens first receive an NTA that lists the time to appear as “to be determined,” before receiving a second notice specifying the exact time and place.[16] This “notice-by-installment” schema has generated a fair amount of controversy[17] and courts have questioned the validity of an NTA with date and time set as “TBD” in nearly every circuit.[18]

Two Supreme Court cases have addressed this issue, and presented what should offer clear guidance for interpreting these statutes. The first, Pereira v. Sessions, decided that an NTA without a specific time or place was not valid under the relevant statute.[19] However, the Pereira court described its ruling as “narrow,” implying their logic only applies when determining timing for certain immigration procedures.[20] Three years later, Niz-Chavez v. Garland clarified that a valid NTA must contain not only a specific time and place for the hearing, but all of the relevant information within a single document.[21]

II. Circuit Split

In the years since, the circuit courts have tackled a new ambiguity originally touched on by Pereira but not yet fully resolved: whether a defective NTA, “changed” by a subsequent clarification, provides sufficient legal notice for an immigration judge to order removal of a non-citizen in absentia.

This question rests on semantic statutory interpretation and the definition of the word “change.”[22] The First,[23] Fourth,[24] Fifth,[25] and Ninth[26] circuits interpret Pereira and Niz-Chavez as laying out a statutory scheme that requires a non-defective NTA (one that includes all 7 required pieces of information in a single document) to be provided to the non-citizen before any in absentia removal order could be issued. Their argument is essentially that a date that has not been set cannot be “changed.” However, the Sixth[27] and Eleventh[28] circuits found that a subsequent notice of hearing can cure a defective NTA, “changing” a date of “to be determined” to a specific date.[29]

III. Possible Resolution

Singh v. Garland[30] and Campos-Chaves v. Garland[31] present particularly troublesome questions to immigration judges. In both cases, the government sent the non-citizen a defective NTA and a subsequent notice of hearing that “corrected” the defect. In both cases, an immigration judge ordered the immigrant removed in absentia after they failed to appear despite government notice setting the date and time of that hearing.[32]

The Supreme Court consolidated these two cases and heard oral argument for them on January 8th, 2024.[33] In their petition for cert, attorneys for Campos-Chavez argued that the disjunction in the circuit courts’ decisions creates fundamental unfairness, “if Mr. Campos-Chaves lived in California or Massachusetts, he could have reopened his removal proceedings and applied to stay in the United States . . . .”[34]  The Supreme Court has the opportunity to resolve this issue, either by explicitly limiting the Pereira rule to its original context, or by expressly authorizing the “some assembly required”[35] form of notice accepted by the Sixth and Eleventh Circuits.

IV. Conclusion

While the respondent’s brief in Campos-Chaves highlights the meaning of the word “change,”[36] and Niz-Chavez includes an extensive discussion of the article, “a,”[37] the core of this ambiguity has less to say about the English language and more to say about balancing government efficiency against the importance of upholding principles of due process. Many similarly situated non-citizens await, defective NTAs in hand, unsure if they ever will, or already have, been sent a notice “changing” or setting the calendar for one of the most important court dates they will ever face. When the penalties for missing this date include removal from the U.S., separation from family, and a possible return to unsafe conditions, it may be better to incur a little bit of extra inefficiency to protect justice, fairness, and safety.[38]

*Rory Rightmyer is a second-year law student at the University of Baltimore School of Law, a Staff Editor for the University of Baltimore Law Review, and currently works as a student attorney at the University’s Immigrant Justice Clinic. Rory is a USAF veteran interested in exploring the complex legal issues surrounding the protection of human rights from individual, national, and global perspectives. The views expressed in this piece reflect their personal beliefs only.

[1] Brief for Petitioner at 15, Campos-Chaves v. Garland, No. 22-674 (U.S. Jan. 18, 2023), 2023 WL 361742, at *15.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] This article uses the term “non-citizen” to describe individuals whom the statutory language refers to as aliens. 8 U.S.C. § 1101(a)(3).

[7] 8 U.S.C. §§ 1101–1537.

[8] 8 U.S.C. § 1229a(a)(3).

[9] 8 U.S.C. § 1229a(b)(2).

[10] 8 U.S.C. § 1229(a).

[11] 8 U.S.C. § 1229(a)(1).

[12] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021).

[13] 8 U.S.C. § 1229(a)(2). Notification of a change in venue or time for the hearing is commonly called a notice of hearing (NOH). Dragomirescu v. United States AG, 44 F.4th 1351, 1354.

[14] Muzaffar Chishti & Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, Migration Pol’y Inst. (Feb. 23, 2022), https://www.migrationpolicy.org/article/us-immigration-backlogs-mounting-undermine-biden.

[15] The Latest USCIS Processing Times – 2023, Boundless, https://www.boundless.com/immigration-resources/uscis-processing-times/ (last visited Oct. 23, 2023).

[16] See, e.g., Niz-Chavez,141 S. Ct. 1474.

[17] Id. at 1479.

[18] United States v. Mendoza-Sanchez, 963 F.3d 158 (1st Cir. 2020); United States v. Pszeniczny, 384 F. Supp. 3d 353 (2nd Cir. 2019); Guadalupe v. AG United States, 951 F.3d 161 (3rd Cir. 2020); Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023); Aguilar-Reyes v. Garland, 2023 U.S. App. LEXIS 15892 (5th Cir. April 6, 2023); Aguilar v. Garland, 861 Fed. Appx. 45 (6th Cir. 2021); Alvarez-Espino v. Barr, 951 F.3d 868 (7th Cir. 2020); Apolinar v. Barr, 945 F.3d 1072 (8th Cir. 2019); Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020); Arias v. Barr, 821 Fed. Appx. 933 (10th Cir. 2020); Ajaj v. United States AG, 847 Fed. Appx. 759 (11th Cir. 2021).

[19] 138 S. Ct. 2105, 2110 (2018).

[20] Id. Specifically, Pereira was answering a question about whether a defective NTA “stopped the clock” for accrual of residency time when deciding whether removal would cause undue hardship. Id. at 2121.

[21] 141 S. Ct. 1474, 1481 (2021).

[22] Decisions tackling this case are full of paragraphs emphasizing the meaningful distinction between singular and plural terms, definite and indefinite articles, and conjunctive or disjunctive “ors.” See, e.g., id. at 1480 (“Admittedly, a lot here turns on a small word. In the view of some, too much.”).

[23] Laparra-Deleon v. Garland, 52 F.4th 514, 520 (1st Cir. 2022).

[24] Lazo-Gavidia v. Garland, 73 F.4th 244, 254 (4th Cir. 2023).

[25] Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2022). But see Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022) (stating that when the noncitizen failed to update their address with the government, no notice is required for an in absentia removal order).

[26] Singh v. Garland, 24 F.4th 1315, 1317 (9th Cir. 2022).

[27] Santos-Santos v. Barr, 917 F.3d 486, 487 (6th Cir. 2019).

[28] Dacostagomez-Aguilar v. United States AG, 40 F.4th 1312, 1314 (11th Cir. 2022).

[29] Many cases point to whether a noncitizen has provided an updated address to USCIS as a dispositive factor in deciding their outcomes. See, e.g.,Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022). But see Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023) (determining that a defective NTA, regardless of whether the noncitizen has updated their address with the government, does not provide adequate process to the respondent).

[30] Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022).

[31] Campos-Chaves v. Garland, 43 F.4th 447 (5th Cir. 2022).

[32] Id. at 447–48; Singh, 24 F.4th 1315 at 1316–17.

[33] Campos-Chavez v. Garland, 2023 U.S. LEXIS 2801 (2023).

[34] Brief for Petitioner at 22, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).

[35] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).

[36] Brief for Respondent at 9, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).

[37] Niz-Chavez, 141 S. Ct. at 1480.

[38] The U.S. Supreme Court heard oral argument for Campos-Chaves on January 8th, 2024.

How Trump 2024 is Shaping Section Three of the Fourteenth Amendment

*Tyler Hueffmeier

I. Introduction                                             

Donald Trump’s 2024 presidential run may be unconstitutional. Section Three of the Fourteenth Amendment states that no “elector of President and Vice President . . . shall have engaged in insurrection or rebellion against” the United States.[1] Trump’s actions on January 6, 2021, specifically his efforts to refuse to count electoral votes via the vice president and through fomenting and inciting a mob, arguably fulfill this criterion.[2]

Given this, the question is how exactly and who exactly determines whether Trump’s 2024 campaign is unconstitutional based on Section Three. The answer is any state election official. No action is necessary to “activate” Section Three.[3] It is simply a condition that must be met for one to become President. Because the Fourteenth Amendment is self-enforcing, state electoral officials already have the authority to simply remove Donald Trump from the ballot.[4] This would be a procedural, as opposed to a punitive, measure, similar to what would occur if Donald Trump was, for example, under the age of 35, which similarly disqualifies him from the office.[5]

II. Litigation

Although the Fourteenth Amendment is self-enforcing, the controversy has already spawned litigation. Plaintiffs hoping to remove trump from the ballot brought suit in Michigan, Minnesota, Florida, New Hampshire, and Arizona.[6] In Michigan, the trial court refused to take Trump off the ballot, finding this a question more appropriate for Congress.[7] In Minnesota, the court refused to take Trump off the primary ballot.[8] They argued that this case is ripe, as Section Three only bars someone from becoming President, not from becoming the primary candidate of a political party.[9] In Florida, the court found that the plaintiff, a private citizen, did not have standing “as the injuries alleged were not cognizable and not particular to them.”[10] In New Hampshire, the court found that Republican presidential candidate John Anthony Castro also lacks standing.[11] Castro argued that he would lose out on potential funding for his campaign if Trump was allowed to run, but the court found no “political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.”[12] Castro has filed suit in a large number of other states as well, but those cases have yet to gain traction.[13]

Trump has been removed from the primary ballot in Colorado,[14] Maine,[15] and most likely more states to come based on Section Three of the Fourteenth Amendment.

III. Potential Impacts

This litigation could potentially result in the legitimate removal of Trump from the ballot in all fifty states. New Mexico residents have already used Section Three to disqualify County Commissioner Couy Griffin for his participation in January 6th.[16] The court found that Griffin engaged in insurrection or rebellion against the United States because he “appeared at a Stop the Steal rally in Albuquerque along with the New Mexico Civil Guard” and “was a featured speaker on a multi-city bus tour to Washington DC.”[17] On this tour, his goal “was to rally and inflame crowds and recruit them to come to Washington DC” on January 6th.[18] If a court finds Trump was as involved as Griffin in the January 6th attack on the Capitol, it could very well disqualify him from holding office. However, of the nine politicians that were accused in court of violating Section Three due to their involvement with January 6th, courts have only chosen to bar Griffin from office.[19]

Another possibility is that, much like Representative Greene, Trump’s actions will be too far removed from the incident for him to be disqualified. Representative Greene is the representative for Georgia’s 14th district in the House of Representatives. During the January 6th attack, Representative Greene posted a video on social media showing support for the participants.[20] The court found this evidence insufficient to establish that Representative Greene violated the Fourteenth Amendment.[21] The question becomes whether Trump’s actions are more akin to Griffin’s active recruiting or closer to Representative Greene’s passive support.

This question is moot if the courts decide that Section Three does not apply to the President at all.[22] The text of the amendment simply refers to the “elector of the President and the Vice President[.]”[23] Once could read this as referring merely to the electoral college as opposed to the president or presidential candidates themself.

The courts could also choose to uphold the Griffin decision from 1869.[24] Chief Justice Salmon Chase wrote this opinion, though not in his capacity as Chief Justice. He was filling in for a circuit court justice at the time. In this opinion, Justice Salmon Chase claimed that any action under Section Three had to be authorized by direct legislation from Congress.[25] He based this claim on Section Five of the Fourteenth Amendment, which states “Congress shall have the power to enforce, by appropriate legislation, the provision of this article.”[26] Recently, an Arizona Superior Court cited Griffin as its basis for dismissing Section Three claims against three politicians who supported the events of January 6th.[27] Griffin has been vigorously challenged by legal scholars such as William Baude and Micheal Stokes Paulsen in their article “The Sweep and Force of Section Three.”[28] They argue that the plain reading of the Amendment suggests that it is self-executing.[29] Baude and Paulsen go on to argue that the Griffin decision focuses too much on what the drafters of the Amendment intended as opposed to focusing on the text of the Amendment itself.[30] However, Griffin remains good law, so there is doubt on whether Section Three is truly self-executing.

The courts could also keep Trump on the ballot by re-interpreting the 1872 Amnesty Act. The Amnesty Act listed the “‘political disabilities imposed by’ Section Three of the Fourteenth Amendment ‘from all persons whomsoever[.]’”[31] A North Carolina District Court ruled that the Amnesty Act gave Senator Cawthorn blanket protection from Section Three.[32] Like Representative Greene, Senator Cawthorn supported the events of January 6th live over social media. Senator Cawthron also spoke at the January 6th rally at the Capitol. The Fourth Circuit overturned the decision giving Senator Cawthorn blanket immunity based on the 1872 Amnesty Act.[33] The Fourth Circuit claimed that the Act did not apply to any crimes committed after its enactment.[34] If the Supreme Court hears this case, it could overturn the Fourth Circuit’s decision, effectively defanging Section Three.

IV. Conclusion

The ultimate fate of Trump in regards to Section Three of the Fourteenth Amendment is unclear. What is clear however is that the scope of Section Three of the Fourteenth Amendment remains undefined. Some theories, such as the 1872 Amnesty Act approach, would strip Section Three of its power entirely. Others, such as the 1869 Griffin case approach, would severely limit its power. Others, such as the 2022 Griffin case, threaten to give the section enormous power, turning it into a political tool to remove candidates before the race even starts. The cases arising over the next few years will decide what Section Three ultimately becomes.

*Tyler Hueffmeier is a second-year evening student at the University Baltimore School of Law. Tyler received a Bachelor’s in Electronic Media and Film from Towson University. Before law school, he used this degree to work as a Social Media Intern at Jones Robb PLLC. Tyler is currently a Staff Editor for the University of Baltimore Law Review.

[1] U.S. Const. amend. XIV, § 3.

[2] William Baude & Micheal Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev.1, 4–5 (forthcoming 2023–24).

[3] Id. at 23.

[4] Id.

[5] Id. at 17–18.

[6] Thomas Kika, Full List of States Trying to Kick Trump Off Ballot and Where Cases Stand, Newsweek (Oct. 24, 2023, 12:56PM), https://www.newsweek.com/full-list-states-trying-kick-trump-off-ballot-where-cases-stand-1837398; Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/; Order of Dismissal at 3, Caplan v. Trump, (S.D. Fla. 2023) (No. 0:23-cv-61628-RLR).

[7] Corey Williams and Nicholas Riccardi, Michigan Judge Says Trump Can Stay on Primary Ballot, Rejecting Challenge under Insurrection Clause, AP News (Nov. 8, 2023, 4:37 PM), https://apnews.com/article/trump-insurrection-14th-amendment-ballot-michigan-b2a870f98a60dffbe4c9566cfe97457c.

[8] Carolina Cummings, Minnesota Court Dismisses Bid to Block Trump on Primary Ballot; Leaves Door Open for General Election Challenge, CBS News Minn. (Nov. 8, 2023, 4:31 PM), https://www.cbsnews.com/minnesota/news/minnesota-supreme-court-issues-order-donald-trump-2024-ballot-case/.

[9] Id.

[10] Caplan v. Trump, No. 23-CV-61628, 2023 WL 6627515, at *2 (S.D. Fla. Aug. 31, 2023).

[11] KC Downey, Judge Dismisses Candidate’s Lawsuit to Keep Trump off New Hampshire Primary Ballot, WMUR (Oct. 30, 2023, 12:30 PM), https://www.wmur.com/article/new-hampshire-donald-trump-ballot-lawsuit-dismiss/45682757.

[12] Id.

[13] Kika, supra note 6.

[14] Anderson v. Griswold, 2023 WL 8770111, ¶ 257

[15] Marshal Cohen, Maine’s top election official removes Trump from 2024 primary ballot, CNN Pᴏʟɪᴛɪᴄs (Dec. 29, 2023, 10:49 AM), https://www.cnn.com/2023/12/28/politics/trump-maine-14th-amendment-ballot/index.html

[16] White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 429519, at *46 (D.N.M. Sep. 6, 2022).

[17] Id. at 5.

[18] Id. at 6.

[19] Id.; Hansen v. Finchmen, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. May 9, 2022); Rowan v. Greene, No. 2222582-OSAH-SECSTATE-CE-57, (Ga. Off. of State Admin. Hearings May 6, 2022), https://sos.ga.gov/sites/default/files/2022-05/Greene-final-decision.pdf; Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022); Stencil v. Johnson, 605 F. Supp. 3d 1109, 1123 (E.D. Wis. 2022).

[20] Greene, 2022 No. 2222582, at 10–11.

[21] Id. at 19.

[22] Nicholas Riccardi, Liberal Groups Seek to Use the Constitution’s Insurrection Clause to Block Trump From 2024 Ballots, AP News (Aug. 31, 2023, 10:51 AM), https://apnews.com/article/trump-14th-amendment-insurrection-2024-election-ballot-9c5f79203109ba221b35a48e708ad725.

[23] U.S. Const. amend. XIV, § 3.

[24] In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869).

[25] Id. at 26

[26] Id.; see U.S. Const. amend. XIV, § 3, § 5; see also Hansen v. Finchem, 2022 CV 2022-004321, at *6 (Ariz. Sup. Ct. April 22, 2022).

[27] Finchem, 2022 CV 2022-004321, at *6.

[28] Baude & Paulsen, supra note 2, at 37.

[29] Id. at 39.

[30] Id. at 40–42.

[31] Cawthorn v. Amalfi, 35 F.4th 245, 248 (4th Cir. 2022) (citing Amnesty Act of 1872, 17 Stat. 142, ch. 193 (1872)).

[32] Id. at 250.

[33] Id. at 260–61.

[34] Id.

Algorithmic Accountability and the Sixth Amendment: The Right to Confront an Artificial Witness

*Dallon Danforth

“[T]he Confrontation Clause guarantees more than the right to ask questions of a live witness…”   – William J. Brennan Jr., Associate Justice of the Supreme Court of the United States of America.[1]

I. Introduction   

One day, for seemingly no reason at all, you are arrested and charged with the murder of a victim that you claim to have never met. As discovery commences, you learn that law enforcement, in the course of their investigation against you, performed DNA analysis on various samples collected from the scene of the crime.  A laboratory analyst produced a report concluding that certain forensic samples are more than hundreds of billions of times more likely to contain your DNA than that of an unrelated party. Knowing that you face life without the possibility of parole, how might you challenge the analyst’s conclusions in court? Does your decision change if the analyst is not a human being, but rather a complex, probabilistic genotyping algorithm developed by a private software company?

As improbable as this scenario appears, it was this exact series of events that ultimately lead to the conviction of New York resident, John Wakefield.[2]

II. Case Study

On May 27, 2015, John Wakefield was found guilty of murder in the first degree. During Mr. Wakefield’s trial, the state introduced evidence of DNA analysis performed by TrueAllele, an artificial intelligence algorithm developed by Cybergenetics.[3] Mr. Wakefield’s defense was severely prejudiced by the results of the DNA analysis which estimated that certain DNA samples were up to 170 quintillion times more likely to belong to Mr. Wakefield than an unrelated person of identical racial background.[4]

Prior to his trial, Mr. Wakefield moved for receipt of TrueAllele’s “source code,” citing his right to confront the witnesses brought against him under the Sixth Amendment.[5] Mr. Wakefield argued that TrueAllele represented “the functional equivalent of a laboratory analyst,” and because the report generated by that laboratory analyst was inherently testimonial, Mr. Wakefield had a Sixth Amendment right to confront TrueAllele as an expert witness against him.[6] The trial court denied the motion, finding that TrueAllele’s report was not testimonial in nature, and that any concerns regarding TrueAllele’s reliability were curable by allowing Mr. Wakefield’s counsel to cross-examine TrueAllele’s Chief Scientist and Executive Officer, Dr. Mark Perlin.[7]

After such cross-examination, Mr. Wakefield argued that Dr. Perlin’s “surrogate testimony” failed to satisfy his Sixth Amendment right, once again asserting that TrueAllele, rather than Dr. Perlin, was the actual expert witness brought against him.[8] Without TrueAllele’s source code, Mr. Wakefield argued, defense counsel could not accurately determine the reliability of TrueAllele’s methodology and, by extension, the validity of the results contained within the highly prejudicial report.[9] Following his trial, Mr. Wakefield was sentenced to life imprisonment without the possibility of parole.[10] 

Mr. Wakefield appealed his conviction, arguing that “his right to confront witnesses was violated by not having access to TrueAllele’s source code.”[11] The appellate court affirmed the conviction, noting that the “TrueAllele report was testimonial in nature since it was generated to assist the police and prosecutors,” but that TrueAllele itself was not a declarant such that the Sixth Amendment would be applicable to its algorithm.[12] Mr. Wakefield appealed once more to New York’s highest court, which affirmed both the ruling and the reasoning of the intermediate court.[13] In a concurring opinion, Judge Rivera differed from the majority by finding that Mr. Wakefield had a Sixth Amendment right to review TrueAllele’s source code, while also criticizing the trial court’s shielding of the source code as a trade secret based upon an earlier argument made by Dr. Perlin.[14] Nevertheless, Judge Rivera concluded that the error was harmless in light of the considerable evidence that otherwise implicated Mr. Wakefield’s guilt.[15]

Following his defeat in New York’s highest court, Mr. Wakefield filed for a writ of certiorari.[16] The Supreme Court of the United States denied his petition on November 21, 2022.[17]

III. Predictive Analysis

With the “current unprecedented advancements in artificial intelligence,” such as those contained in TrueAllele’s algorithm, Mr. Wakefield’s asserted right to review advanced algorithmic source codes will almost certainly be re-litigated by future defendants.[18]  Afterall, the increased use of powerful algorithmic software continues to foster novel legal issues.[19] For example, Georgia resident Randal Reid was charged with felony theft after security cameras equipped with powerful facial recognition software falsely identified Mr. Reid as a participant of the criminal event.[20] Mr. Reid, who had never set foot in the charging jurisdiction, was jailed for nearly a week before law enforcement rescinded his arrest warrant after acknowledging the error in the algorithm’s facial identification process.[21] Had Mr. Reid’s case proceeded to trial, Mr. Wakefield’s failed appeals suggest that Mr. Reid would be denied access to the source codes utilized by the facial recognition technology used to implicate his guilt.[22]

By outlining the competing interests that arise when courts attempt to apply the Sixth Amendment to an artificial witness, Judge Rivera’s concurrence reveals a powerful dichotomy. On one hand, “[t]rade secrets can be used to protect almost everything related to software,” and algorithms like TrueAllele therefore enjoy considerable protections under the law.[23] However, shielding the source code of testimonial algorithms by appointing surrogate witnesses with a proprietary interest in that same source code does not produce the “objective, unbiased review” necessary for the proper administration of justice.[24] Because the right to confront and cross-examine witnesses is “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal,” the confrontation of advanced algorithms via surrogate testimony places at odds the unstoppable force of the Sixth Amendment with the immovable object of trade secret protections.[25] Of course, both interests, compelling as they are, cannot indefinitely prevail against the other, and courts will soon be tasked with appointing a victor. As New York’s intermediate court previously noted, “[g]iven the exponential growth of technologies such as artificial intelligence, to embrace the future we must assess, and perhaps reassess, the constitutional requirements . . . that arise where law and modern science collide.”[26]

IV. Conclusion

Given the rapid rate at which advanced software algorithms continue to permeate everyday life, such technology will soon strain the Sixth Amendment in an unprecedented manner. As future defendants come to relitigate Mr. Wakefield’s novel argument, presiding courts will further weigh trade secret protections against the authority of the Sixth Amendment’s Confrontation Clause.

*Dallon Danforth is a second-year student at the University of Baltimore School of Law. He also serves as the President of the Caroll Inn Chapter of the Phi Delta Phi International Legal Honor Society and is a teaching assistant for Professor Matthew Lindsay’s Constitutional Law course. He would like to thank the Law Review staff for the opportunity to publish this piece and his friends for their never-ending support.

[1] United States v. Owens, 484 U.S. 554, 572 (1988) (Brennan, J., dissenting).

[2] People v. Wakefield, 107 N.Y.S.3d 487, 491 (N.Y. App. Div. 2019) (“A jury trial was held, after which defendant was convicted of murder in the first degree and robbery in the first degree.”).

[3] Id. “[TrueAllele] . . .  eliminat[es] all but the most rudimentary of human participation.” People v. Wakefield, 38 N.Y.3d 367, 387 (2022).

[4] “Specifically, TrueAllele concluded that it was 5.88 billion times more probable that defendant was a contributor to the mixture on the amplifier cord . . .  that it was 170 quintillion times more probable that defendant was a contributor to the mixture on the outside rear shirt collar . . .  that it was 303 billion times more probable that defendant was a contributor to the mixture on the outside front shirt collar . . .  and that it was 56.1 million times more probable that defendant was a contributor to the mixture on the victim’s dorsal . . . . ” Wakefield, 38 N.Y.3d at 373.

[5] Id. at 378; see also Rod Dixon, When Efforts to Conceal May Actually Reveal: Whether First Amendment Protection of Encryption Source Code and the Open Source Movement Support Re-Drawing the Constitutional Line Between the First Amendment and Copyright, 1 Colum. Sci. & Tech. L. Rev. 3, 55 (2000) (“[S]ource code is the text of a program written in a ‘high-level’ programming language, such as ‘PASCAL’ or ‘C.’”).

[6] Wakefield, 38 N.Y.3d at 378.

[7] Id. at 374, 378.

[8] Id. at 378.

[9] See id.

[10] Id. at 394 (Rivera, J., concurring).

[11] People v. Wakefield, 175 A.D.3d 158, 165 (N.Y. App. Div. 2019) (acknowledging that “[t]his argument raises legitimate and substantial questions concerning due process as impacted by cutting-edge science.”).

[12] Id. at 168–69.

[13] Wakefield, 38 N.Y.3d at 386.

[14] Id. at 387.

[15] Id. at 394.

[16] Docket Search, Sup. Ct. of the U.S., https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-5588.html (last visited Sep. 3, 2023).

[17] Id.

[18] “[T]he current unprecedented advancements in artificial intelligence devices constitute a sort of ‘Fourth Industrial Revolution’ . . . . ” Thomas Belcastro, Getting on Board with Roberts: How the Business Judgment Rule Should Apply to Artificial Intelligence Devices Serving as Members of a Corporate Board, 4 Geo. L. Tech. Rev. 263, 270 (2019).

[19] See, e.g., John Simerman, JPSO Used Facial Recognition Technology to Arrest a Man. The Tech was Wrong., nola (Jan. 2, 2023), https://www.nola.com/news/crime_police/jpso-used-facial-recognition-to-arrest-a-man-it-was-wrong/article_0818361a-8886-11ed-8119-93b98ecccc8d.html; see also Arjun Sha, 18 Examples of AI You’re Using in Daily Life in 2023, Beebom (Apr. 29, 2023, 11:51 AM), https://beebom.com/examples-of-artificial-intelligence/.

[20] See generally Simerman, supra note 19 (“The case highlights the pitfalls of a technology that more law enforcement agencies are adopting across the country, even as critics point to research showing bad matches at higher rates for some populations, including Black people and women.”).

[21] Id.

[22] Id. (the law enforcement agency responsible for Mr. Reid’s arrest utilizes facial recognition algorithms developed by Clearview AI and Morphotrak).

[23] “Trade secrets can be used to protect almost everything related to software.” E. Robert Yoches, Protection of Computer Software by Patents, Trade Secrets, and Trademarks, 22 Tort & Ins. L. J. 354, 358 (1987).

[24] People v. Wakefield, 38 N.Y.3d 367, 395 (2022) (Rivera, J., concurring).

[25] Pointer v. Texas, 380 U.S. 400, 405 (1965); see also Rebecca Wexler, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System, 70 Stan. L. Rev. 1343, 1429 (2018) (“A criminal trade secret privilege would almost certainly lead to overclaiming, abuse, and the exclusion of highly probative evidence; it would also project a message that the government values intellectual property holders more than those whose life or liberty is at stake.”).

[26] People v. Wakefield, 175 A.D.3d 158, 165 (N.Y. App. Div. 2019).