Current Print Issue

Vol. 164, Issue 6

  July 2016

Featured Article

War Torts: Accountability for Autonomous Weapons

Rebecca Crootof
164 U. Pa. L. Rev. 1347 (2016)

Unlike conventional weapons or remotely operated drones, autonomous weapon systems can independently select and engage targets. As a result, they may take actions that look like war crimes—the sinking of a cruise ship, the destruction of a village, the downing of a passenger jet—without any individual acting intentionally or recklessly. Absent such willful action, no one can be held criminally liable under existing international law.

Criminal law aims to prohibit certain actions, and individual criminal liability allows for the evaluation of whether someone is guilty of a moral wrong. Given that a successful ban on autonomous weapon systems is unlikely (and possibly even detrimental), what is needed is a complementary legal regime that holds states accountable for the injurious wrongs that are the side effects of employing these uniquely effective but inherently unpredictable and dangerous weapons. Just as the Industrial Revolution fostered the development of modern tort law, autonomous weapon systems highlight the need for “war torts”: serious violations of international humanitarian law that give rise to state responsibility.

Featured Comment

How to Avoid the Standing Problem in Floyd: A Relaxed Approach to Standing in Class Actions

William I. Stewart
164 U. Pa. L. Rev. 1509 (2016)

David Ourlicht, a black Manhattan man in his twenties, was stopped and frisked by New York City police officers three separate times in 2008. That same year, Ourlicht and three other black men who had similarly been stopped and frisked filed a federal lawsuit against the City of New York, alleging that the New York City Police Department’s stop‐and‐frisk program violated their Fourth and Fourteenth Amendment rights. The plaintiffs brought a class action suit in the Southern District of New York on behalf of themselves and all others similarly situated, and they sought an injunction mandating an overhaul of the City’s stop‐and‐frisk program. The case, Floyd v. City of New York, was heard by Judge Shira Scheindlin, who, in 2013, found that the City’s stop‐and‐frisk program was unconstitutional and ordered sweeping changes to the program. The plaintiffs got results: in 2011, NYPD officers stopped 686,000 individuals, or on average more than 13,000 per week; by the end of 2013, such stops had fallen by more than 90% to fewer than 2000 per week.

But an even more consequential decision in the case may have been an earlier, overlooked one: in 2012, the Floyd court found that the plaintiffs had standing to seek an injunction. More specifically, the court found that David Ourlicht had standing, and since he was a class representative, his standing satisfied Article III’s case or controversy requirement. In so holding, however, the court appeared to run afoul of two Supreme Court precedents: one that requires a plaintiff seeking injunctive relief to “establish a real and immediate threat that he [will] again” suffer the alleged harm, and another that holds “[t]hat a suit may be a class action . . . adds nothing to the question of standing.” Was there actually a real and immediate threat that David Ourlicht would again be stopped and frisked by NYPD officers? That seems doubtful.

And yet the district court’s finding that the plaintiffs had standing was correct, under both class action theory and Supreme Court precedent. This Comment articulates the reasons why it was correct. Part I begins by giving a brief overview of standing generally. Part II shows how theory and precedent justify a relaxed approach to standing in class actions. Finally, Part III explains the Floyd court’s standing analysis and shows that, below the surface, the court was actually using a justifiably relaxed approach.

Online Exclusives
 Last updated: October 25, 2016


In Defense of Lowering the Voting Age (Draft)

Joshua A. Douglas
165 U. Pa. L. Rev. Online __ (2016)

In the upcoming November election, voters in San Francisco will decide whether to lower the voting age from eighteen to sixteen for local elections. It is by no means a radical idea. The Maryland municipalities of Takoma Park and Hyattsville recently lowered the voting age to sixteen for their own elections. Turnout among sixteen– and seventeen‐year‐olds has been robust, strengthening the democratic process in these cities. Lowering the voting age represents good policy. Policymakers and voters should embrace this innovation.

This Essay outlines the various policy arguments in favor of lowering the voting age to sixteen, the subject of Proposition F on the San Francisco ballot this year. Part I presents a very brief history of the voting age in U.S. elections. It notes that setting the voting age at eighteen is, in many ways, a historical accident, so lowering the voting age for local elections does not cut against historical norms. Part II explains that there are no constitutional barriers to local jurisdictions lowering the voting age for their own elections. Part III highlights the benefits to democracy and representation that lowering the voting age will engender. Turning eighteen represents a tumultuous time for most young adults as they leave home either to enter the workforce or go off to college. Sixteen, by contrast, is a period of relative stability when young people are invested in their communities and are learning about civic engagement in school. Lowering the voting age can, therefore, create a habit of voting and increase overall turnout in later years. Finally, Part IV presents psychological studies demonstrating that, by age sixteen, individuals possess the cognitive capabilities required to perform an act that takes time and deliberation, like voting. That is, sixteen‐year‐olds are as good as, say, forty‐year‐olds at making deliberative decisions necessary for democratic participation. This Part also refutes the claim that lowering the voting age will create additional votes for parents, as prior experience shows that young people do not simply follow their parents in the voting booth.

In sum, lowering the voting age is a sound mechanism to improve our elections. It brings additional, competent individuals with a stake in electoral outcomes into the democratic process. San Francisco voters should pass Proposition F to lower the voting age, and other cities should follow suit.


Perverse Incentives, Cost‐Benefit Imbalances, and the Infield Fly Rule

Howard M. Wasserman
164 U. Pa. L. Rev. Online 145 (2016).
Responding to Andrew J. Guilford & Joel Mallord, Time to Drop the Infield Fly Rule and End a Common Law Anomaly

In response to Andrew J. Guilford & Joel Mallord, A Step Aside, Time to Drop the Infield Fly Rule and End a Common Law Anomaly, 164 U. Pa. L. Rev. 281 (2015).

Judge Andrew J. Guilford and Joel Mallord begin their manifesto against the Infield Fly Rule with an unrealistic hypothetical. The Chicago Cubs are at bat in the bottom of the ninth inning of Game Seven of the World Series. They trail by one run and have the bases loaded with no outs. The Cubs’ star hitter lofts a fly ball onto the edge of the outfield grass on the right side, which the second baseman settles under, “shield[ing] his eyes from the blazing sun.”

Guilford and Mallord decry that pursuant to baseball’s historic Infield Fly Rule, the umpire will call the batter out and the runners will likely remain where they are, regardless of whether the second baseman catches the ball. The umpire dictates the outcome of this critical play in baseball’s most important game, not the players and their skill or strategy. And Cubs fans, “on the edge of their seats in anticipation,” must be deflated by the anticlimactic ending.

Speaking as a Cubs fan, however, my reaction to this hypo is “Thank goodness for the Infield Fly Rule.” Without it, this play likely produces an inning‐, game‐, and World Series‐ending triple play. Or, only slightly better, a double play on the lead base runners, leaving the Cubs with two outs and runners on first and second, still down one run. On the other hand, with the Infield Fly Rule, the Cubs still have the bases loaded and still have only one out. In other words, with the Infield Fly Rule, my team still has a pretty good chance to score runs, win the game, and win the World Series for the first time in over a century; without it, my team’s chances plummet.

Case Note

Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys who Accept Potentially Tainted Funds

Philip J. Griffin
164 U. Pa. L. Rev. Online 179 (2016).

“In the common understanding, money laundering occurs when money derived from criminal activity is placed into a legitimate business in an effort to cleanse the money of criminal taint.” 18 U.S.C. § 1957, however, prohibits a much broader range of conduct. Any person who “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged with money laundering under § 1957.

Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 “applies to the most open,

above‐board transaction,” such as a criminal defense attorney receiving payment for representation. In response to pressure from commentators, Congress passed an amendment two years after § 1957’s enactment defining the term “monetary transaction” so as to exclude “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.”

The statutory safe harbor found in § 1957(f)(1) has successfully immunized defense attorneys from money laundering prosecutions. However, United States v. Blair raised concerns among the criminal defense bar because of its holding that an attorney‐defendant was not entitled to protection under § 1957(f)(1). In Blair, an attorney‐defendant was convicted of violating § 1957 for using $20,000 in drug proceeds to purchase two $10,000 bank checks to retain attorneys for associates of his client. Noting that Sixth Amendment rights are personal to the accused and that Blair used “someone else’s money” to hire counsel for others, the Fourth Circuit held that his actions fell “far beyond the scope of the Sixth Amendment” and were not protected by the safe harbor. In his strongly‐worded dissent, Chief Judge Traxler criticized the court for “nullif[ying] the § 1957(f)(1) exemption and creat[ing] a circuit split.”

This Case Note discusses the implications of Blair for the criminal defense attorney who accepts potentially tainted funds and proposes a solution to ameliorate its unintended consequences. First, Part I provides relevant background information by discussing the money laundering statutory framework, the criticisms leveled at the framework as it was written, the Congressional response to that criticism, and § 1957(f)(1)’s application up until Blair. Next, Part II describes the Blair decision in detail and examines its implications. Part III then proposes a novel solution to the problems it created. Finally, the Case Note concludes with a brief word of practical advice for the criminal defense bar.