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Sovereign immunity protects the government from liability arising in suits brought against it by citizens. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional.
This Comment argues that the discretionary function exception should only immunize unconstitutional tortious conduct when the actions do not violate clearly established constitutional rights of which a reasonable officer would have known.

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. This Comment argues that a more complete evaluation of national security implications under the clear and convincing evidence standard will more accurately capture the full scope of proffered government interests and reduce the extreme deference given to the executive branch in its national security determinations.

Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This Comment argues that courts must first adopt an understanding of religion in the context of religious asylum claims in order to determine what it means to be persecuted on account of religion under the INA. To avoid inconsistent reasoning among immigration and federal courts as it relates to the one central reason standard, this Comment proposes a four-part definitional methodology of religion and argues that a but-for causation standard as used in Title VII claims is sufficient in adjudicating religious asylum claims.

In 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which required TikTok’s parent company ByteDance to sell TikTok to a company in a “non-adversarial” country or be banned from the United States. TikTok challenged the regulation, in part, as a violation of the Fifth Amendment’s Takings Clause, which would permit the government to ban TikTok so long as it compensates ByteDance. Because PAFACA applies to applications beyond TikTok, it raises a broader question: does the Takings Clause require government compensation for bans on foreign web services? This Comment argues the answer is no.

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. Ultimately, this Comment concludes that it would take an extraordinary set of facts to find social media companies secondarily liable for an act of terrorism. This Comment then suggests other avenues to encourage social media companies to heighten their detection of Foreign Terrorist Organization (FTO) activity and prevent future attacks.

A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a knock and talk. For example, when police officers knock and receive no answer, can they remain standing at the door, or even roam to other parts of the home?

In response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which municipalities may enforce anti-camping ordinances against individuals experiencing homelessness who have no alternative to sleeping in public without violating the Eighth Amendment. As municipal regulation and judicial interpretation narrow the scope of permissible use of publicly owned areas, this raises the question of to what extent, and to whom, public space is actually accessible. To best safeguard public spaces, protect individuals experiencing homelessness, and avoid the risks that a narrow interpretation may create, this Comment argues that courts should interpret Ninth Circuit precedent surrounding homelessness broadly and take into account individual complexities on a case-by-case basis.

In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.

The distinction between “groundwater” and “navigable waters” has long created legal disputes. The most recent Supreme Court decision to grapple with the boundary between groundwater and navigable waters is County of Maui v. Hawaii Wildlife Fund. Section 301(a) of the Clean Water Act (CWA) prohibits the discharge of any pollutant into navigable waters without a National Pollutant Discharge Elimination System (NPDES) permit. The question in County of Maui is whether the CWA applies to pollutants that travel from a point source through groundwater, before entering navigable waters. The Supreme Court held that the CWA requires a permit when the discharge is the “functional equivalent” of a direct discharge. However, the Court did not define “functional equivalent” and instead provided a list of seven factors for lower courts to evaluate on a case-by-case basis.

As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of domestic terrorism. It introduces the lack of a general criminal statute prohibiting acts of terrorism and discusses the issues associated with the varying definitions of domestic terrorism employed by the federal government.

Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own district? This Comment argues that the MDL court should apply the federal law of the original, transferor court because such a rule would protect plaintiff autonomy and limit inconsistencies once cases are remanded back to their original district for trial.

The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for medical care to the establishment of large-scale programs for entire groups of people. The creation and administration of large-scale parole programs have been the focus of recent lawsuits, placing critical questions on the meaning and scope of the provision before judges. This Comment aims to provide a historical overview of humanitarian parole and evaluate controversies and lawsuits challenging large-scale parole programs. Ultimately, it argues that large-scale parole programs play a crucial role in our immigration system, and their creation is a legitimate, legal use of the provision. It ends by making a recommendation on how to amend the parole statute to formally authorize large-scale programs.