Notes

To have a strong public education system, it is imperative to recruit and maintain high-caliber public school teachers and ensure that school administrators can terminate underperformers. Teachers unions have contributed to this effort by increasing professionalism in teaching and giving teachers a role in school management, but they have also detracted from it by making it too difficult to terminate incompetent teachers. Nonunionized charter schools that employ teachers at will, on the other hand, may leave teachers vulnerable to arbitrary or malicious terminations. Unionized charter schools, a relatively recent phenomenon, produce teacher contracts that, as the result of labor negotiations between two prominent players in education, could provide valuable lessons for reform to the American public education system. This Note’s analysis of contracts from the unionized charter schools in New York City reveals that they provide teachers with more job protection than employment at will but far less than provided in the public school union contract. Traditional public schools and unions should reform their collective bargaining agreements to provide a level of job security similar to that in the unionized charter school contracts. This may create the right balance between allowing principals to terminate incompetent teachers and protecting teachers from arbitrary or malicious terminations.

In Boumediene v. Bush, the Supreme Court held that the right to the writ of habeas corpus extended to noncitizen detainees captured abroad and detained at the American naval base in Guantánamo Bay, Cuba. Although Boumediene extended habeas corpus to Guantánamo and formulated a practical extraterritorial habeas corpus framework, the decision may have been a limited victory for civil rights advocates, as it did not resolve the question of the writ’s reach to any other American detention facilities located abroad, including the Bagram Theater Internment Facility in Afghanistan. In Al Maqaleh v. Gates, the D.C. District Court concluded that the petitioners detained at Bagram, like those at Guantánamo, had the right to petition for the writ of habeas corpus, but the D.C. Circuit reversed the lower court on appeal. The D.C. District and Circuit courts came to different conclusions because they took drastically different approaches to the Boumediene framework. This Note argues that the district court came to the right conclusion because its analysis was more faithful to Boumediene, it was more conscious of Boumediene’s separation-of-powers concerns, and, like the Supreme Court, it was appropriately receptive to the possibility that the Executive was attempting to “switch off” the Constitution by strategically detaining suspected enemy combatants in a location unlikely to receive judicial review. Furthermore, the fact that the district and circuit courts were unable to apply the framework consistently suggests that the Boumediene analysis may require refinement or clarification. This paper attempts to provide that.

This Note uses the Broadway musical Spider-Man: Turn Off the Dark as a case study to examine the legal and nonlegal systems in place to deter unsafe working conditions in the theatre industry. In little over a year of rehearsals and performances, seven members of the Spider Man cast were injured, one very seriously. (An eighth cast member was then seriously injured as this Note was being prepared for print, approximately two years later.) This Note argues that Spider-Man illustrates how the current regime does not deter unsafe conditions. It argues that the workers’ compensation exclusivity bar to a civil suit—which provides employers a complete defense with respect to covered injuries, unless an injury is the result of an intentional tort—should be lowered to create better incentives for producers to ensure the safety of their actors.

The Supreme Court held in Burford v. Sun Oil Co. that federal courts, through an exercise of equitable discretion, could abstain from asserting subject matter jurisdiction over challenges to state administrative agency orders. Since Burford, the Court has failed to reconcile abstention with either Congress’s subject matter jurisdiction statutes or the Constitution, which both arguably require federal courts to exercise jurisdiction when the subject matter is proper. Instead of relying on equitable discretion, I believe federal courts can and should ground Burford abstention in constitutional and statutory restrictions on the types of power that federal courts may exert. Article III of the Constitution and the federal question, diversity, and removal jurisdiction statutes require federal courts to abstain from asserting jurisdiction when doing so would require federal courts to take nonadjudicative action.

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

This Note argues that modern-day patent litigation lacks sufficient consideration of public policy concerns. In order to remedy this, I propose three potential solutions that would broaden standing in patent declaratory judgment actions, thereby allowing more plaintiffs who are likely to raise such arguments to have their day in court. First, I discuss expanding standing within the Supreme Court’s MedImmune framework, which requires courts to apply a broad all-the-circumstances test in determining patent declaratory judgment standing. Within this test, I urge courts to consider (1) the degree to which a potential infringer raises important public policy concerns and (2) the extent to which the potential infringer has a unique economic incentive to challenge the patent-at-issue. Second, I consider altering the framework for standing in patent declaratory judgment actions based on a reassessment of the fundamental justifications for standing doctrine generally. Observing that the traditional justifications for a standing requirement—and the separation of powers justification in particular—do not apply in the context of patent declaratory judgment actions, I suggest that the Supreme Court might craft a new standing framework. Third, I explore the extent to which Congress might statutorily expand standing in such cases. I conclude by noting that the post-grant opposition procedure created by the America Invents Act—the patent reform legislation signed into law in September 2011—is insufficient to assuage unease regarding the lack of public policy arguments in patent litigation. Courts might therefore look to standing in order to address this problem.

The civil litigation system aims to resolve disputes in an efficient, centralized, and final manner. In the context of mass tort litigation, one technique courts often use to achieve these goals is what I call “scaling up”: holding individual trials, and then applying results from these trials to similarly situated individuals. Scaling up, however, presents two difficulties. First, the technique risks compromising defendants’ Due Process rights by creating impermissible settlement pressure. Second, scaling up requires the initial court to structure the litigation so that it may serve as a template for follow-on proceedings; where this is not done, attempting to graft the results of one proceeding onto the remaining group of similarly situated individuals may simply lead to more protracted litigation.

Yet these difficulties are not inherent to the technique; in fact, courts can scale up in a way that avoids these problems. In order to mitigate the Due Process problem, courts should not apply the results of individual trials to subsequent trials involving similar claims until a substantial number of trials have been completed, and until it has become clear that any verdicts unfavorable to defendants are not flukes or outliers. And to ensure that scaling up does not simply lead to more protracted litigation, the initial trials should be structured so as to maximize the likelihood that individuals in follow-on litigation can invoke the findings under the issue preclusion doctrine of Parklane Hosiery v. Shore. The American Law Institute has made a proposal with these considerations in mind with respect to issue classes. This Note argues that a similar approach should be taken in the Multidistrict Litigation (MDL) process, where most mass tort litigation occurs today. This approach would be particularly useful if applied to one device that is being used with increasing frequency in the MDL process: the bellwether trial.

In response to the challenges of globalization, U.S. agencies at times reach agreements on regulations with their foreign counterparts and then subsequently implement those regulations domestically. Some have suggested that this model of rulemaking gives agencies determinative incentives to implement the international regulation as negotiated—and thus to ignore public comments in the domestic rulemaking process. In this Note, I use the Basel Accords as case studies to show that agencies do not necessarily implement international agreements as a fait accompli. Nevertheless, I argue that international agreements may illegitimately influence the domestic rulemaking process and that courts must therefore be more vigilant in reviewing these types of regulations.

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.