Notes

Defending the Privacy Act’s Complete Civil Remedies Exemption

The Privacy Act of 1974 places limitations on what federal agencies may do with the personal information they collect from the public. As its name suggests, a primary purpose of the law is to protect the privacy of individuals by mandating that agencies’ systems of records be maintained in particular ways. At the same time, the Act preserves the ability of agencies to pursue their statutory goals by permitting law enforcement agencies to exempt their systems of records from select provisions of the Act. This Note concerns the scope of one of those exemptions, referred to as the “general exemption.” Specifically, it addresses a statutory ambiguity surrounding whether these agencies may completely exempt their records from the Act’s civil remedies provision, thereby foreclosing civil liability for all violations of the Act. This Note answers that question in the affirmative, and it supports that answer through two independent modes of analysis. First, the Note argues that, using traditional tools of statutory interpretation, the best reading of the portions of the Privacy Act in question is one that recognizes the complete exemption. Second, the Note meets a particular objection to that reading: that permitting a complete civil remedies exemption would authorize and encourage widespread violations of the Privacy Act, thereby “defanging” the Act. The Note maintains that civil remedies are not theoretically necessary to protect substantive rights, and that the particular context of the Privacy Act is replete with examples of nonjudicial institutions serving as effective checks—or fangs—on agency compliance with the law.

An Enhanced Regulatory Role for Executive Agencies in Title VI Disparate Impact Enforcement

Title VI charges the federal government with removing discrimination in our public institutions. In light of disparate impact claims concerning a range of racially discriminatory education practices, this Note makes the case for the benefit of an official regulation from the U.S. Department of Education—as a federal arm—that more specifically informs the disparate impact framework’s educational necessity standard. This regulation would not only aid plaintiffs seeking to challenge harmful educational practices, but also provide courts with more specific and authoritative guidance in adjudicating Title VI disparate impact claims. This Note argues that a beneficial starting point for such a regulation would make clear that a discriminatory school policy should be evaluated based on whether a school policy advances equal educational opportunities and whether the school is in the best position to remedy a policy that does not. A regulation guided by this standard comports with Title VI’s original intention of rooting out discrimination against protected minority groups as well as helps to ensure minorities’ full access to a high quality public education.

An Argument for Retroactive Application of the Eighth Amendment

In 2012, the Supreme Court issued a landmark decision substantially altering the long-held view that “death was different” from other punishments under the Eighth Amendment. In Miller v. Alabama, the majority held that defendants who were under eighteen at the time of their crimes were categorically less culpable than adult offenders, and were constitutionally entitled to individualized hearings before being sentenced to life without parole. Because the majority opinion did not discuss whether the new rule was retroactive, Miller raises a question rarely raised throughout our country’s judicial history: Once a punishment is found unconstitutionally cruel and unusual, may the states continue to inflict it on those whose sentences were final at the time? This Note posits the idea that our current retroactivity framework, as articulated, does not always lead courts to the correct answer when considering this question, and that an articulated presumption of retroactivity is necessary to ensure Eighth Amendment protections in the context of both capital and noncapital sentences. Part I provides an overview of retroactivity, and then discusses the opinions in Miller. Part II explores the evolution of Eighth Amendment jurisprudence, with special attention to how the retroactivity question has been answered in the affirmative through history, and then reports the current divide in the state courts and federal circuit courts regarding Miller‘s retroactive availability. Part III explains that the reason we have had presumptive retroactivity, and should continue to do so, in the Eighth Amendment context is because the state interests driving the retroactivity doctrine are diminished and ultimately irreconcilable with the guarantee against cruel and unusual punishments.

Examining the Effect of the America Invents Act on the Patent Grace Period

This Note argues that the U.S. Patent and Trademark Office’s interpretation of the new grace period under the America Invents Act (AIA), 35 U.S.C. § 102(b)(1)(B), is overly narrow and that an alternative interpretation proposing a broader reading of the grace period is more appropriate. Evidence for a broader reading includes the effect of each interpretation on the administrative burden at the Patent and Trademark Office, speed of patent disclosure, innovative activity by specific inventor groups, and inventor behavior in patent races. This analysis shows that a narrow interpretation of the grace period creates greater administrative burdens, discourages disclosure, disfavors small inventors and universities, and may make blocking firms in a patent race virtually costless. In contrast, a broad grace period is simpler to administer, accelerates disclosure, supports innovation by small inventors and universities, and provides firms with a defensive maneuver in patent races.

Factfinding in Appellate Court Review of Agency Rulemaking

Recognizing the need for a check on agencies’ discretion, Congress has assigned the task of reviewing agency rulemaking to the judiciary. Yet, by allocating much of that review directly to appellate courts, Congress has forced them to find facts. For example, when deciding challenges to a rule that an agency has promulgated, these courts must often hear for the first time plaintiffs’ evidence about factors that the agency failed to consider. When deciding challenges to an agency’s failure to act, they must weigh the plaintiffs’ proof about the consequences of the delay against the factual explanation the agency offers for its inaction. And, in any of these challenges, appellate courts may have to rule on facts related to standing. At best, because appellate courts typically lack the tools and institutional experience to conduct factfinding effectively, Congress has unduly burdened these courts and magnified the risk of inaccuracy. At worst, it has created incentives for appellate courts to defer to agencies and thereby weakened the entire institution of judicial review. The solution is simple: Congress should return these factfinding responsibilities to district courts.

Congress enacted the critical habitat provisions of the Endangered Species Act (ESA) to provide a powerful tool for promoting the recovery of endangered and threatened species of plants and animals. However, agency recalcitrance and constant litigation have mired its efficacy, resulting in a tangled mess that fails to effectuate the recovery goal of the ESA. This Note disentangles that mess through the lens of the ongoing circuit split over the proper methodology for consideration of costs during critical habitat designation. Concluding that the Services’ favored method, the baseline method, is superior in its faithfulness to the statutory language and the intent of Congress, this Note warns that the baseline method’s legality will continue to be undermined until the Services promulgate proper regulatory definitions to support its internal logic.

The botnet, a group of computers infected with malicious software and remotely controlled without their owners’ knowledge, is a ubiquitous tool of cybercrime. Law enforcement can take over botnets, typically by seizing their central “command and control” servers. They can then manipulate the malware installed on private computers to shut the botnet down. This Note examines the Fourth Amendment implications of the government’s use of remote control of malware on private computers to neutralize botnets. It finds that the government could take more intrusive action on infected computers than it has previously done without performing a search or seizure under the Fourth Amendment. Most significantly, remotely finding and removing malware on infected computers does not necessarily trigger Fourth Amendment protections. Computer owners have no possessory interest in malware, so modifying or removing it does not constitute a seizure. Additionally, even if the government’s efforts cause some harm to private computers, this will rarely produce a seizure under the Fourth Amendment because any interference with the computer will be unintentional. Remotely executing commands on infected computers does not constitute a search under the Fourth Amendment unless information is returned to law enforcement.

There are important uses for trusts that are essentially unavailable in China. Family trusts and larger-scale trusts run by private parties for the public interest are extremely rare and face a difficult regulatory environment. While China’s Trust Law itself recognizes a distinction between “civil” and “commercial” trusts, the regulations governing trust businesses recognize no such distinction. These regulations impose conditions that make small-scale family trusts and collective civil trusts almost impossible. It is unclear whether these regulations apply to all trusts, but even if they do not, the narrow view of trusts that they promote limits the usefulness of trusts in other areas. However, these types of trusts could be accommodated by easy reforms revising the regulatory and legal framework to permit and facilitate family and public interest trusts.

Unchecked Discretion and Undesirable Consequences

The Obama Administration has historically expanded the availability of deferred action, which provides a reprieve from the threat of deportation and work authorization to certain undocumented immigrants, through the creation of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These programs, as well as legislative efforts to provide a path to citizenship for undocumented immigrants, increasingly seek to exclude suspected gang members. In doing so, they make gang databases managed by state and local law enforcement increasingly relevant to eligibility decisions. These databases, however, lack the procedural safeguards necessary to curb police discretion, which can allow racial stereotypes and biases to influence decisionmaking and lead to the disproportionate inclusion of people of color. This Note argues that the policy rationales underlying procedural due process highlight the inadequacies of these databases as tools for immigration adjudicators. By using them to determine eligibility for immigration benefits, the Department of Homeland Security (DHS) imports the racial bias inherent in the criminal justice system to the immigration system. In order to avoid this result and increase both fairness and accuracy, DHS should bar adjudicators from relying on gang databases.

In Search of Just and Proportional Sanctions for Buyers of Sex with Trafficking Victims

The U.S. criminal justice system currently lacks a proportional, clear, and effective law targeted at individuals who purchase sex with trafficking victims. These “johns” of trafficking victims (JTVs) historically have remained anonymous and unaccountable. More recently, three unsatisfactory approaches to sanctioning this group have emerged. First, they are sometimes subjected to low-level patronization and solicitation misdemeanors alongside johns of consensual sex workers. Second, they are increasingly prosecuted as traffickers under sex-trafficking legislation. Third, they are occasionally prosecuted as statutory rapists and sex abusers if the victim is a minor. This Note argues that none of these first three approaches are an adequate fit for this population. Treating them simply as johns ignores the seriousness of their offense and does not distinguish prostitution from trafficking. Treating them as traffickers is disproportionate on the other extreme, especially with recent strict liability interpretations of sex-trafficking statutes and mandatory minimums, and furthermore dilutes the term “human trafficking.” Finally, treating them as statutory rapists is underinclusive and ignores the commercial nature of the offense. This Note explores a fourth approach being implemented sporadically on the federal and state levels: prosecuting johns of trafficking victims under legislation explicitly addressing this group. This Note argues that targeted legislation is the most appropriate and fair approach. It advocates modified versions of such legislation, with tailored mens rea standards and flexible penalties correlated to culpability.