Arbitrary Paternalism and the SEC Accredited-Investor Standard

By Leah Duncan

Associate Editor, Vol. 24

Seal_of_the_United_States_Securities_and_Exchange_Commission.svgIn developing the current accredited investor requirements to balance competing considerations of investor protection and capital formation, the Securities and Exchange Commission has used proxies that give rise to discrimination against communities of color.[1] While this problem is on its face economic in nature, I will approach it through the lens of race and ethnicity to illuminate the ways in which the accredited investor requirement excludes communities of color from avenues to wealth.

Pursuant to the Securities Act of 1933, the SEC requires that a company or private fund either register the sale or offering of their securities or be exempted based on a safe harbor regulation. Section 4(a)(2) of the Act provides an exemption for private sales which are further governed by Regulation D requirements that dictate purchasers must be “accredited investors.”

So, what does it mean to be an accredited investor? The SEC defines an accredited investor as anyone who “has a net worth over $1 million alone or together with a spouse” or someone who “has earned income that exceeded $200,000 or $300,000 together with a spouse in each of the prior two years, and reasonably expects the same for the current year.”[2] In order for a person to invest in a private security offering, they must comply with at least one of these requirements. The goals of these requirements include protection of investors and the facilitation of capital formation.[3] The SEC has had to grapple with how to balance these two aims. Over-protection of investors could make it more burdensome for some investors to participate in the capital markets. While too much focus on facilitating capital formation may leave investors prey to heightened risk of financial harm. With these concerns in mind, the SEC has decided that income and net-worth “serve as proxies for financial experience, sophistication, and adequate bargaining power.”[4]

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What the Passage of Michigan’s Proposal One Means for Black and Latinx People

By Elizabeth Morales-Saucedo

Associate Editor, Vol. 24

Marijuana-Legalization-e1477695073120-680x380On November 6, 2018, 56% of Michigan voters supported the passage of Proposal One approving the legalization of recreational use and possession of marijuana by persons 21 and older.[1] Michigan is the tenth state in the United States, and the first state in the Midwest, to legalize the recreational use of marijuana.[2] The initiative is set to become law by November 26, 2018, according to Secretary of State spokesman Fred Woodhams.[3] Before Michigan residents ‘light up,’ however, caution is advised as marijuana is still an illegal substance under federal law.[4] This advice is particularly true for Black and Latinx people who will likely continue to face higher arrest rates for marijuana than white people after its legalization.[5]

As Michigan is the tenth state to legalize marijuana, some lessons can be learned from the experiences of previous states who passed similar legislation. Specifically, data collected from Colorado, Alaska, and Washington, D.C. helps answer the question; what does the passage of Proposal One mean for Michigan and its communities of color?

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California’s Efforts to Reform Bail Leaves Much to be Desired

By Jules Hayer

Associate Editor, Vol. 24

California Governor Jerry Brown Addresses Dept. Of Justice Lawsuit Against CaliforniaDespite recent developments in California to overhaul the bail system, the state still has a long way to go in order to create effective change. In January of this year the California Court of Appeals ruled that, before setting bail, judges must take into account the financial situation of a defendant and determine whether the defendant can be released without imposing a danger to public safety.[1] Moreover, the prosecution bears the burden of presenting clear and convincing evidence which establishes that no conditions of release would ensure the safety of the community, thus requiring the confinement of the person while awaiting trial.[2]

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How Jeff Sessions is Quietly Transforming Immigration Law to Promote His Anti-Immigrant Agenda

By Samantha Kulhanek

Associate Editor, Vol. 24

Seal_of_the_Executive_Office_for_Immigration_ReviewThe Attorney General’s authority to refer Board of Immigration Appeals (“BIA”) decisions to himself for review was established via regulation in 1940,[1] and yet this power appears to be receiving more attention today than it ever has.[2] The appointment of Jeff Sessions as Attorney General prompted a string of these unique reviews,[3] in which Sessions has attempted to profoundly alter the way immigration courts interpret certain provisions of the Immigration & Nationality Act (“INA”).

The most publicized example of Sessions’s exercise of this referral power thus far has been his decision in Matter of A-B-, where he attempted to effectively narrow the circumstances in which individuals fleeing gang violence or domestic abuse may receive asylum in the U.S.[4] However, some of Sessions’s other decisions resulting from his use of the referral power have received relatively little attention, and yet may have massive consequences for the immigration system. Three decisions in particular have attacked the discretion of immigration judges and threaten to interfere with their judicial independence and how they handle their dockets.

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Countering Violent Extremism Under the Trump Administration: The True Focus is Minority Communities, Not Domestic Extremism

By Mackenzie Walz

Associate Editor, Vol. 24

PF_17.07.26_MuslimAmericans_lede_640x320Through the Homeland Security Act of 2002, Congress established the prevention of domestic terrorist attacks as one of the Department of Homeland Security’s primary missions and appropriated ten million dollars “for a countering violent extremism (CVE) initiative to help states and local communities” combat these threats.[1] Pursuant to the Act, in 2011 the Obama Administration created and implemented the “first national strategy” to prevent domestic violent extremism, entitled “Empowering Local Partners to Prevent Violent Extremism in the United States.”[2] Taking a community-based approach, the program was designed to distribute federal funds to local organizations – educational institutions, non-profits, or law enforcement agencies – which would provide community members with the requisite resources and education to identify signs of extremist radicalization.[3] The ultimate goal was for community members and local leaders to develop relationships of trust through this engagement, which would empower community members, once educated, to report any identified signs of extremism.[4]

While the program was designed to combat all types of violent extremism, in operation and effect it targeted Muslim-American communities.[5] Instead of building relationships of trust between community members and these local leaders, as it was intended to do, it bred mistrust, as the program in some communities “appeared to be doubling as a means of surveillance.”[6] This mistrust made some members of the Muslim-American community hesitant to reach out to law enforcement officers to report signs of radicalization,[7] rendering the outreach program less effective.

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Department of Education Reopens Anti-Discrimination Case, Sparks Controversy

By Rose Lapp

Associate Editor, Volume 24

NR09WaksmanInstitute3254_pgIn 2011, The Zionist Organization of America filed a religious discrimination claim against Rutgers University with the Department of Education Office of Civil Rights (“OCR”). The complaint had three claims. One of these claims, the one being addressed by the Department of Education and by this piece, arose out of an event held on campus by a pro-Palestinian group.[1] Allegedly, there was originally free admission to the event, but the organizers began charging admission “only after [they] observed ‘150 Zionists’ who ‘just showed up.’”[2]

Under Title VI of the Civil Rights Act of 1964, OCR has jurisdiction over discrimination on the basis of race, color and national origin.[3] Under Title IX of the Educational Amendments of 1972, the office has jurisdiction over sex discrimination claims.[4] Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975 gives OCR jurisdiction over discrimination on the basis of disability and discrimination on the basis of age, respectively.[5] The office does not, however, have jurisdiction over religious discrimination claims.

In 2014, on the grounds that there was insufficient evidence of discrimination on the basis of national origin, the Department of Education closed the case.[6] However, now four years later, Kenneth Marcus, the current Assistant Secretary for the Office of Civil Rights at the Department of Education, has reopened the case.[7] He has indicated that he will reexamine the complaint as “possible discrimination against an ethnic group,”[8] and has expanded the definition of anti-Semitism in the OCR context to a “working definition” that is used in other government agencies.[9] This definition includes “denying the Jewish people their right to self-determination” and “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”[10] These changes will likely have serious consequences for discrimination claims brought by Jewish students.

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Trump’s Efforts to Deport People Back to “Sh**hole” Countries Stalled by Equal Protection Clause

By Kerry Martin

Associate Editor, Vol. 24

TPSHow racist can the President of the United States be in determining immigration policy before he violates the Equal Protection Clause? A lot depends on who the target is—and with recipients of temporary protected status, Trump may have picked on the wrong people.

Donald Trump announced his candidacy with anti-Latino animus (“When Mexico sends its people…”)[1] and has not backed down since entering the White House. In response to allegations of crime by Central American immigrants on Long Island, President Trump remarked: “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there.”[2] Of Haitians, Trump said they “all have AIDS”[3] and asked, “why do we need more Haitians?”[4] And in response to an immigration proposal that would have included protections for Salvadorans, Haitians, and some Africans, Trump inquired, “Why are we having all these people from shithole countries come here?”[5]

This racial animus seems inextricable from every immigration policy decision made by the Trump Administration, from ramping up internal enforcement and border protection, to pushing for legislation that would curb “chain migration” and fund a border wall. But it has proven difficult, at least for purposes of stating a legal claim, to tie these broad-sweeping policy choices to Trump’s racist statements, even if “[e]veryone knows”[6] that the two are related.

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Do Indigent and Incarcerated Women Have a Real Right to Reproductive Justice?

By Hira Baig
Associate Editor, Volume 23

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Reproductive justice is not just concerned with women having access to the healthcare they need, it is also concerned with the disparate impact caused by restrictions on reproductive healthcare. Historically, the more restrictions the Court allows on abortion, the more challenging it becomes for indigent women, women of color, and incarcerated women to get the healthcare they need. In order to achieve reproductive justice, scholars and advocates alike ought to think of a comprehensive way to help all women access the reproductive healthcare they need before, during, and even after pregnancy.

Currently, the doctrine surrounding reproductive healthcare, primarily abortion, does not account for women’s social contexts and allows restrictions that keep minority and indigent women from enjoying equal protection of the laws. It comes as no surprise that indigent women face severe restrictions when trying to access abortion. Incarcerated women, however, face even greater hurdles.

Today, prisons and jails in the United States confine approximately 206,000 women.[1] Approximately 6-10% of women are already pregnant when they enter a prison or jail.[2] Doctor visits for pregnant women in prison are infrequent, with only 54% of women who reported being pregnant in state prisons receiving pregnancy care.[3]

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The End of Mass Incarceration: A Blueprint for Transformative Change

By Rasheed Stewart
Associate Editor, Vol. 23

He sued the Philadelphia Police Department over 75 times.[1]  As a career civil rights and criminal defense attorney he routinely represented individuals subjected to the oppressive forces of racism pervading law enforcement and the criminal justice system.[2] His nationally acclaimed representation of arrested protestors involved with the “Black Lives Matter” movement solidified his reputation among black and brown people as an authentic, hard-nosed movement lawyer.[3]  And now, as Philadelphia’s District Attorney, Larry Krasner has managed to put forth a radical, yet replicable platform for ending mass incarceration.

Within three months, Krasner has issued several of the most transformative policies that any prosecutor in U.S. history has dared to even imagine.  Rather unsurprisingly, Krasner’s new policies have quickly managed to enrage union leaders of the Philadelphia Fraternal Order of Police,[4] while simultaneously galvanizing influential civil rights activists like Shaun King, in supporting his vision for systemic change.[5]  To demonstrate his unrelenting approach to transformative change, Krasner has hit the ground running with a flurry of noteworthy edicts.  First, to “broadly reorganize the office’s structure and implement cultural change,” Krasner dismissed 31 members of the office just three days into office, including trial attorneys and several supervisor level staff members.[6]  Second, in responding to a judge’s order, Krasner publicly released a secret list of current and former police officers whom prosecutors have sought to keep off the witness stand after a review determined they had a long history of lying, racial bias, or brutality.[7]  Moreover, Krasner’s ‘Do Not Call’ list now legitimately sends the foreboding message that cronyism between police officers and ADA’s have no place in an ethically transformed criminal justice system.

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The Color of Blight: Michigan’s Troubled History of Urban Renewal Complicates Detroit’s Comeback

By David Bergh
Associate Editor, Volume 23
Online Publications Editor, Volume 24

image.pngThe governmental power of eminent domain has deep roots in the Anglo-American legal tradition. Early English law held that the power to expropriate land was inherent in the Crown’s sovereign authority.[1] As an element of the Crown’s sovereignty, this power was essentially limitless – the King or Queen could take land without compensation, as William I did following the Norman Conquest.[2] The requirement that compensation be paid developed as the absolute power of the Crown waned.[3] This legal doctrine was little altered in the early years of the United States. The Michigan Constitution of 1835 contains no affirmative grant of the power to use eminent domain, only the requirement that property could not be taken “without just compensation therefor.”[4] The fact that the power of eminent domain inhered in the residual sovereignty of the states was endorsed by the U.S. Supreme Court in 1878.[5]

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