Notes

Over the last fifty years, courts and scholars have debated the utility and reliability of informants—individuals who alert law enforcement to the occurrence of crime, point law enforcement in the direction of potential perpetrators, and help law enforcement prosecute those eventually charged. There are three primary types of criminal justice informants: (1) criminal and confidential informants, (2) anonymous tipsters, and (3) citizen-informants. Judicial examinations and scholarly critiques of informants have focused almost exclusively on the first two categories. These informants are deemed suspect, either because they are so enmeshed in the justice system that they have questionable motives, or because they inculpate others under a veil of anonymity. Meanwhile, the third category of informant—the citizen-informant—has evaded rigorous scrutiny because of the “citizen-informant doctrine,” a premise embraced by the federal courts and many state courts. The citizen-informant doctrine reasons that individuals who witness or fall victim to crime and willingly identify themselves to law enforcement officers are presumptively reliable. This presumption enables law enforcement officers to conduct searches and seizures that would otherwise be unlawful based on uncorroborated reports from untested civilians. The citizen-informant doctrine has major consequences for the robustness of the Fourth Amendment’s protection against unjustified government intrusions, and it has an enormous impact on the integrity of police investigations and criminal prosecutions. Yet this doctrine rests on shaky foundations that have heretofore been insufficiently probed. This Note proposes that courts require law enforcement officers to conduct more exacting inquiries before relying on the word of a so-called citizen-informant.

The federal courts are currently divided on how to determine the diversity citizenship of trusts. Several circuits hold that trusts take the citizenship of their trustees. Another circuit holds that trusts take the citizenship of the trust’s beneficiaries, and yet another considers the citizenships of both the trustees and the beneficiaries. But beyond this circuit split, a more significant problem plagues the law in this area: The courts of appeals have failed to recognize the distinction between traditional and business trusts. The former—what is most commonly thought of as a trust—is a gift and estate planning tool. The latter is an alternative to incorporation, and is designed to run a business and generate profit for investors.

In this Note, I examine the differences between traditional and business trusts in the context of federal diversity jurisdiction. After discussing the history of diversity jurisdiction and the nature of these two forms of trusts, I explore the current circuit split over the citizenship rules for trusts. I then propose a new rule that fits within the current Supreme Court case law in the field: Traditional trusts take the citizenship of their trustees, while business trusts take the citizenship of their members—the beneficiaries. Having proposed a rule that depends upon the type of trust at issue, I conclude by explaining that a trust can be classified by determining the primary purpose for which it was organized.

Transgender youth in foster care are not safe. While these youth face the daily danger of physical violence at the hands of others in their foster care group homes, administrators of child welfare services have shown deliberate indifference to these risks, and staff in foster care group homes do not effectively protect the physical safety of transgender youth in their care. Because resource constraints make it impossible to place all transgender youth in LGBTQ-only group homes, we need a solution that will make transgender youth safe in the group homes that already exist. This Note argues that the current New York City foster care system violates the substantive due process safety rights of the transgender youth under its care, and proposes legislation that would presumptively mandate transgender-only bedrooms and bathrooms. Such legislation would provide safe spaces within existing group homes in order to fix current constitutional violations.

The American labor movement is in trouble. As union density declines and worker organizing becomes more difficult, a relatively new model, the worker center, has emerged to organize low-wage immigrant workers. Worker centers devise a broad range of strategies and internal structures to meet the challenges of the contemporary organizing landscape, and these strategies would not be possible were worker centers considered labor organizations under labor law. Recently, anti-union groups and members of Congress have shifted focus to worker centers, urging that they be regulated under the National Labor Relations Act. By examining the history of labor law and the structure of worker centers, this Note argues that regulation of worker centers under the NLRA would be inappropriate, ahistorical, and an unreasonable restriction on the associational rights of workers.

The United States is distinct among nations in its constitutionalization of personal jurisdiction. This Note explains the intertwined history of U.S. specific jurisdiction law and the so-called “Hague Judgments Project,” which is facilitating negotiations toward a treaty regulating recognition and enforcement of foreign judgments. This Note argues that the constitutionality of any such proposed treaty will remain uncertain unless U.S. courts clarify existing personal jurisdictional doctrine, particularly regarding the “jurisdictional filters” question: May U.S. courts lawfully recognize and enforce a foreign judgment issued upon a jurisdictional basis that would have been unconstitutional in domestic litigation? This Note answers “yes,” at least when the foreign court’s exercise of personal jurisdiction is compatible with internationally accepted norms. By proposing a cogent response to this question, this Note hopes to facilitate the negotiation and adoption of a future judgments convention.

Notwithstanding Title VII legal remedies, structural barriers have driven many teachers of color out of the workforce in recent decades. Legislative changes in education policy have exacerbated the problem, notably by mandating teacher certification exams. These exams often disproportionately affect teachers of color. Many teachers suing under a Title VII disparate impact claim, however, cannot name states—the actors that create and promulgate the tests—as defendants because courts have interpreted Title VII’s employment relationship requirement to preclude state-defendants. This Note proposes a framework that involves a real-world analysis of the extent to which states control local school governance. The framework shows that courts should allow state-defendants in these Title VII disparate impact claims when the test at issue is a state-mandated teacher certification test.

Plaintiffs seeking to institute a civil action in federal court must plead the grounds for the court’s subject-matter jurisdiction over their claim; if they cannot adequately do so, their claim will be dismissed. Recently, courts have started to apply the plausibility rule announced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal—which requires plaintiffs to plead facts plausibly showing their entitlement to relief—to the pleading of subject-matter jurisdiction. This Note argues that such a novel shift in how jurisdiction is pleaded is neither supported nor necessitated by Twombly and Iqbal and is fundamentally incompatible with long-settled jurisdictional doctrine. It therefore recommends that district court judges redouble their attention to the articulation of procedural rules of decision (eschewing reliance upon boilerplate) and desist from imposing heightened pleading of subject-matter jurisdiction without considering the question as a matter of first impression.

In Padilla v. Kentucky, the Supreme Court declared that defense attorneys must give advice to noncitizen defendants regarding the risk of deportation in order to meet the constitutional standard for effective assistance of counsel. Acknowledging the confusing nature of immigration law, the Court stated that when the law is not straightforward, a criminal defense attorney need do no more than advise a noncitizen client that a conviction may carry a risk of adverse immigration consequences. However, when the deportation consequence is clear, the attorney must give similarly clear advice. Some lower courts have chipped away at Padilla’s holding, allowing vague advice—either from the defense attorney or from other sources—to be deemed effective even in cases where Padilla would seem to require more specific advice. In treating vague defense attorney advice as reasonable, or allowing generic warnings from the court or arresting officers to “cure” a lack of immigration advice from defense attorneys, courts are circumventing Padilla’s demand for specific advice in situations where the consequences of a guilty plea are clear, and thus undermining the underlying concerns of the Supreme Court’s reasoning. Especially in cases where deportation is virtually mandatory, receiving general advice that there is a “risk” of deportation leaves a client with the impression that there is a chance to stay in the country. This impression could have a serious effect on the defendant’s ultimate decision to plead guilty or go to trial. Furthermore, these courts’ approach gives little incentive for defense attorneys to look into the immigration consequences of their clients’ convictions. This Note argues that courts should not allow generalized and unclear advice to meet the standard for effective assistance of counsel when the immigration consequences are actually clear-cut, because doing so undercuts the purpose of the Padilla decision and is unhelpful to noncitizen clients.

As many as 98,000 people die each year as a result of medical error. According to law and economics scholars, the solution to this problem is straightforward: When calibrated correctly, medical malpractice liability will force healthcare providers to internalize the cost of their negligence, incentivizing improvements to patient safety that will reduce medical error. Debate has raged for decades over the coherence of deterrence theory, but little attention has been paid to the erosion of one of its bedrock assumptions: that the procedural mechanism through which claims are to be resolved is litigation. Arbitration has become pervasive in the healthcare context, but its effects on medical malpractice liability’s ability to deter medical error have been largely overlooked by public health and legal scholars. This Note argues that the adoption of arbitration will not, as law and economics scholars assume, improve the medical malpractice regime’s ability to deter error. In addition to drawing on existing law and economics and public health scholarship to advance this descriptive claim, this Note studies the experience of Kaiser Permanente, the nation’s largest integrated healthcare consortium, in using arbitration to resolve medical malpractice disputes with its seven million members in California.

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.