Notes

Preclusion law is notoriously convoluted. Courts have made no secret of their distaste for the doctrine, describing it variously as “conflicting,” “inconsistent,” “breeding confusion,” and ultimately “not very well liked.” Though the Supreme Court has consolidated issue and claim preclusion into a single coherent whole, this Note argues that the merger of res judicata and collateral estoppel in our modern preclusion law is incomplete. These different preclusions are motivated by different rationales: Res judicata protects private closure of parties, while estoppel began as a defense of judicial interests and expanded to forward systemic ones. Though private and systemic interests may often align, this alignment is not inevitable. In the case of public rights, failure to keep these doctrines distinct has undermined judicial ability to offer closure. Attention to the differences in historic preclusion doctrines ultimately provides a direction for modernization in the form of intervention.

Our Government derives its legitimacy from the consent of the governed, generally measured through our elections. When incumbent powers create structures and rules for our politics that entrench the status quo and limit voter control, however, the legitimacy of that consent is tested. For more than fifty years, and in spite of the “political question doctrine,” the Supreme Court has adjudicated challenges to franchise restrictions, gerrymandering, ballot access provisions, and more. In doing so, the Court utilizes doctrinal frameworks that focus on harms to individual rights and not on structural harms to the competitiveness, accountability, and responsiveness of our politics. This myopic view leaves systemic entrenchment and political lockup largely untouched. Scholars have identified these doctrinal deficiencies, but have not suggested an alternative textual basis for judicial intervention in these cases. This Note offers a potential solution in the Guarantee Clause. It argues that the Clause embodies a promise of popular sovereignty in the states. I contend that the Guarantee Clause can and should be revived to unburden the courts from the deficiencies of existing doctrine and provide a textual basis for addressing the problems of political malfunction.

In June 2013, President Obama issued a memorandum directing the Environmental Protection Agency (EPA) to use its authority under Sections 111(b) and 111(d) of the Clean Air Act to address carbon pollution from new and existing power plants. Over two years later, the EPA issued the final rule, known as the Clean Power Plan, and a proposed federal plan that will be implemented in states that do not submit their own plan under the Clean Power Plan. Both the Clean Power Plan and the EPA’s proposed federal plan rely heavily on emissions trading programs to reduce carbon emissions in a cost-effective manner. Emissions trading programs set a cap on the total amount of a pollutant permitted and allow sources to buy and sell allowances based on how much of the pollutant each source is reducing or emitting. Opponents of the Clean Power Plan and its trading provisions are challenging the rule on the grounds that it is beyond the EPA’s authority under the Act.

This Note suggests that these emissions trading provisions are valid for two related reasons: first, the EPA has successfully implemented emissions trading programs under Section 110 of the Act in the past that demonstrate the agency’s longstanding history of using these programs; and second, emissions trading has been upheld by the Supreme Court as permissible under Section 110, and Section 111(d)—under which the Clean Power Plan was promulgated—contains two substantive references to Section 110. Taken together, the EPA’s past use of emissions trading programs and the statutory references in Section 111 suggest that the trading provisions in the Clean Power Plan and the proposed federal plan are a permissible exercise of the EPA’s authority.

With the rise of the internet and computer storage, the loss and theft of individuals’ private information has become commonplace. Data breaches occur with increasing regularity, leading some to question if the current statutory and regulatory schemes properly incentivize the maintenance of adequate security measures amongst federal agencies. This Note argues that inadequate data security practices by government agencies implicate the constitutional right to informational privacy. While the Court has previously upheld intrusive personal information collection programs, the Privacy Act, which plays an essential role in the Court’s decisions, has been weakened significantly by recent interpretation of its damages provision. Given this change in the effectiveness of the statutory protection of private data, lawsuits alleging a violation of the constitutional right to informational privacy might succeed and could help incentivize optimal levels of data security amongst government agencies.

Being queer—like deviating from the norm in any way—can be socially disabling. So why not turn to disability law for redress? After a nationwide same-sex marriage ruling from the Supreme Court, many are devoting more attention to the current absence of uniform, federal employment discrimination protections for lesbian, gay, bisexual, and transgender (LGBT) people. As Title VII has grown friendlier to claims made by LGBT individuals, people are debating the merits of cognizing anti-LGBT bias as sex discrimination in the law. Meanwhile, the Equality Act, introduced in Congress in 2015, would ban discrimination on the basis of LGBT status throughout the country. But while vital, Title VII and the Equality Act could leave a gap through which queer people whose identities are not legible within the gender binary and are not politically stable as lesbian, gay, bisexual, or transgender are left out. This Note argues that LGBT people should challenge their current exclusion from the Americans with Disabilities Act (ADA) through constitutional litigation to fill this gap. Through its disavowal of traditional identity politics, the ADA offers an additional comparative advantage that has transformative potential for queer plaintiffs: Its foundation on the social model of disability topples the LGBT rights movement’s historic emphasis on respectability to enable unrestrained self-determination.

Dignity has been associated with death in two very different areas of constitutional jurisprudence: assisted suicide and the death penalty. This Note seeks to analyze what the concept of dignity means in these two contexts: who is the subject of dignity and what are dignity’s requirements? It argues that assisted suicide foregrounds the subjective dignity of the individual; what dignity involves is largely, though not wholly, a question of what an individual considers a dignified way to die. By contrast, the subject of dignity in death penalty jurisprudence is the collective and not the individual. Inasmuch as the jurisprudence claims to speak to the dignity of the individual, that dignity is objective and extends no further than collective dignity’s reach. As a result, what constitutes dignity in execution is almost wholly determined by what appears dignified to society. This Note ends by critically assessing how the two constitutional areas that link death and dignity may fruitfully inform each other. It suggests that assisted suicide’s individualistic dignity includes not just a right to decide how to die, but also a responsibility to collective society to consider how the nature of that suicide may impact collective dignity. In turn, in the death penalty context, states and courts should import subjective individual dignity considerations and reconsider whether their invocation of “dignity” in fact reflects a collective valuation of dignity or merely assuages social sensibilities by masking the reality of death.

Many biotechnology products are living organisms that are essentially “made” by a trial and error process of directing evolution in a laboratory. Decades ago, the Supreme Court in Chakrabarty settled the threshold question of patent eligibility for life forms, stating clearly that living things are patentable. Nevertheless, the fact that nature assists inventors so heavily in the process of inventing a useful new organism raises the question of whether such organisms meet patent law’s enablement requirement—that a patent application must teach a person of ordinary skill in the art how to make and use the invention without undue experimentation. This Note argues that the enablement requirement has been overlooked for patents to genetically engineered organisms, and proposes solutions for updating this requirement to properly incentivize the creation of socially beneficial living things, without allowing inventors to bar access to products of nature.

This Note analyzes the relationship between “malice aforethought,” the mens rea required to commit murder, and self-defense, a potential justification for a killing. Although both concepts are well-established in criminal law, there is a dearth of jurisprudence dealing with their intersection. Specifically, many jurisdictions, including the Second Circuit, have yet to conclusively address the issue of whether the mental state required for proving a self-defense justification is incompatible with the mens rea of malice aforethought required for committing murder under the primary federal murder statute, 18 U.S.C. § 1111. Because under federal law, self-defense is an issue of common law, rather than statutory, the existing case law on this question in federal jurisdictions is inconsistent, inconclusive, and often nonexistent. Some circuits have indicated, often in dicta, that malice is incompatible with the reasonable fear for one’s safety that is required when acting in self-defense, while other courts have found it consistent for a defendant to possess a preformulated intent to kill another person but also act (and therefore kill) in the moment due to a fear for his or her life or safety. While both positions present analytical difficulties, these problems all stem largely from the definitional ambiguity surrounding “malice aforethought” and courts’ subsequent inconsistent applications of the concept in murder trials. Therefore, this Note argues for the adoption of a clear and consistent definition of “malice aforethought” which encompasses its common law definition, requiring a depraved or evil mental state beyond mere intent to kill.

Nearly half of all employers consider applicants’ credit histories when making some hiring or promotion decisions—and they risk violating Title VII of the Civil Rights Act of 1964 (Title VII) when they do so. Employer credit checks have a potentially disparate impact on minorities and an attenuated relationship to asserted concerns about job performance and employee theft. The case law analyzing disparate impact challenges to credit check policies, meanwhile, is sparse, leaving employers with little direction as they shape their practices. This Note suggests that the Equal Employment Opportunity Commission (EEOC) issue detailed guidance on employers’ use of credit checks and proposes a novel framework drawn from agency guidance on the use of criminal records, which adopts the Eighth Circuit’s Green factors. Specifically, the EEOC ought to recommend that employers take into account the source or type of debt, the time between the “negative behavior” and the employment decision, and the nature of the job; the guidelines should also advocate for individualized assessments. Guidance along these lines would clarify what constitutes lawful credit check usage and benefit the job-seekers that Congress intended to protect with Title VII’s enactment.

The prevailing medical consensus is that drug addiction and alcoholism are disabilities. Before 1996, SSI and SSDI, the nation’s major disability benefits programs, recognized that consensus and provided benefits to people struggling with addiction. Then, the “DAA materiality” provision of Congress’s 1996 welfare reform legislation revoked eligibility not only from people struggling with addiction, but also from people with addiction and another severe disability whose addiction contributes to the severity of the other disability. For this latter group of “dual-diagnosis” claimants, it is often impossible to determine which of a claimant’s impairments would remain absent substance abuse. In such cases, the evidence is in equipoise, and whichever party bears the burden of proof of DAA materiality will lose. Despite its importance to many disability benefits claimants, the issue of who bears the burden of proof remains unresolved, with the Social Security Administration placing the burden on the government and a split among the federal appeals courts that have taken up the issue. This Note argues that the burden of proof of DAA materiality should fall on the government. It shows that the DAA materiality provision creates an exception to the definition of disability in the Social Security Act that functions like an affirmative defense for the government to deny benefits to otherwise eligible claimants. It then contrasts the many obstacles facing dual-diagnosis claimants with the government’s superior resources and expertise to offer proof on the complex DAA materiality issue.