Overbroad or Overboard? Reconsidering the Fifth Circuit’s Application of the Realistic Probability Test in Light of Recent Contrary Opinions

Danielle Grote

In an unusual turn of events last summer, U.S. Fifth Circuit Court of Appeals Judge James E. Graves, Jr. wrote the majority opinion in Alexis v. Barr, then separately wrote a concurrence criticizing his own opinion.[1] Writing for the majority, Judge Graves denied in part and dismissed in part petitioner Alexis’s request for review of the Board of Immigration Appeals (BIA) order affirming an immigration judge’s removal order.[2] In his concurrence, Judge Graves explained that he felt bound by Fifth Circuit precedent in writing the opinion; however, he found the result to be both “illogical and unfair.”[3] At issue in the case was whether Alexis’s conviction under Texas law for possession of cocaine qualified as a controlled substance offense under federal law, making him, a noncitizen, removable from the United States.[4] To answer that question, courts apply a “categorical approach” in which they compare a state criminal law statute to the federally recognized, generic definition of the crime, to determine whether the state law is a categorical match.[5] Where a match is found, certain federal law consequences are triggered, including immigration consequences.[6] In this case, the immigration judge, the BIA, and the Fifth Circuit all agreed that the definition of cocaine is broader under Texas law than federal law.[7] In most circuits, the inquiry would have ended there: the court would declare the Texas law overbroad, and refrain from applying federal immigration consequences. Instead, Judge Graves went on to apply unique Fifth Circuit precedent which dictates that, in order to establish overbroadness, a petitioner must also show a “realistic probability” that Texas will prosecute conduct that falls outside the generic, federal definition of the crime, and ultimately found that Alexis failed to meet that test.[8]

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Section 230: Should the Interactive Computer Service Provider Shield Be Repealed?

Katherine Fruge Corry

During a joint session of Congress convened on January 6, 2021, to count the electoral votes and confirm the electoral victory of President Joseph Biden, a radical faction of Trump supporters stormed the Capitol building in an unsuccessful attempt to thwart the democratic process.[1] Tragically, several lives were lost in connection with these activities.[2] Despite the attack, democracy prevailed when order was restored to the Capitol, and President Biden was formally declared victor of the 2020 Presidential election, in accordance with the will of American voters.[3] Two days later, Twitter, Facebook, Snapchat, and Instagram, among others, permanently or indefinitely suspended former President Donald Trump’s social media accounts.[4] In the aftermath of these suspensions, media consumers throughout the world could hear the resounding silence. To many, the silence ushered in relief, and an end to a stream of election misinformation emanating from Donald Trump’s social media accounts.[5] For others, these actions were seen as an Orwellian precedent for a broader framework towards censorship of conservatives by Big Tech companies.[6]

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One – “NIL”: A Score for Student-Athletes in their Fight for Name, Image, and Likeness Rights

Braedon B. Morrow

I. Introduction

Since its inception in 1906, the National Collegiate Athletic Association (NCAA) has prohibited student-athletes from promoting or endorsing a commercial product or service, even if they are not paid to do so.[1] Put simply, this means that student-athletes may not profit off of their name, image, and likeness (NIL) if they wish to maintain their NCAA eligibility.[2] For decades the system made sense; however, the current modernization of college athletics has given rise to the need for change. In its 2018–2019 fiscal year, the NCAA earned $1.12 billion in revenue, most of which was generated from its Division I Men’s Basketball Tournament.[3] In 2018, all Division I Football Bowl Subdivision schools earned revenues totaling $8.78 billion.[4] College athletics is no longer all about amateurism. Plainly put, it is now a multi-billion-dollar business that allows everyone to make money but the student-athletes themselves. Make no mistake, student-athletes receive several valuable benefits such as a full scholarship, room, board, healthcare, and a stage to showcase their talents to professional scouts, but a blanket restriction on the ability of student-athletes to make money from third parties is outdated and archaic. The issue ultimately boils down to fairness: all non-athlete college students can profit from their name, image, and likeness, but the students who are actually in the public eye, the student-athletes, cannot do so without losing their eligibility to compete.[5]

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Smile and Waive: The Enforceability of Waivers of Liability During the COVID-19 Pandemic

Virginia Stewart

I. Introduction

On March 1, 2020, President Trump proclaimed that the outbreak of coronavirus, or COVID-19, in the United States constituted a national emergency.[1] In response, several states took legislative action in order to protect businesses, among other things, against tort claims related to  COVID-19.[2] The Louisiana Legislature followed other states by enacting Louisiana Revised Statutes § 9:2800.25, which grants to certain types of entities protection from liability for claims related to COVID-19.[3] Although effective June 13, 2020, the law is retroactive to March 11, 2020, when Louisiana declared its state of emergency related to COVID-19.[4] In relevant part, the statute provides:

No natural or juridical person, state or local government, or political subdivision thereof shall be liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of the person’s, government’s, or political subdivision’s business operations unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct. If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, government, or political subdivision shall substantially comply with any one applicable set of procedures.[5]

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Whose Product Is It Anyway? Examining Amazon’s Liability Under the LPLA for Products Sold by Third Parties on its Website

by Braxton Duhon

I. Introduction: An Explosive Case

Angela Bolger, like many Amazon Prime[1] customers, often used Amazon to order items that she needed.[2] On one such occasion, Bolger searched the internet for a replacement laptop battery and ultimately ordered one from Amazon.[3] Amazon then shipped Bolger a Lenoge[4] laptop battery, which she received a few days later.[5] After opening the Amazon-branded box, wrapped in Amazon-branded shipping tape, Bolger installed and began to use her new laptop battery.[6] The laptop battery exploded within the first few months of use, placing Bolger in the hospital for two weeks because of serious burns.[7] Bolger then filed suit against Amazon seeking compensation for her injuries under the theory of strict products liability.[8]

The Bolger case is not as straightforward as it initially appears because Lenoge––the original manufacturer––is a third-party seller that utilizes Amazon to sell its product and fulfill such sales.[9] Ultimately, the California Court of Appeal held that Amazon was potentially liable under strict products liability for the sale of a defective third-party laptop battery on its site when the original manufacturer was part of the “Fulfillment by Amazon” (FBA) program and Amazon played an integral role in the overall production and marketing process.[10] Because of Amazon’s unique distribution structure under the FBA program, other courts have struggled to apply traditional strict products liability laws.[11] Continue reading