Notes

Network investigative techniques (NITs) are law enforcement tools that allow the government to hack into targeted computers by exploiting technological vulnerabilities. NITs have succeeded in identifying and locating criminal actors operating on the Dark Web where traditional investigative techniques have failed. They play a critical role in the investigation of cybercrime and in the national security sphere. But disclosure of a NIT’s code can render it useless and jeopardize government operations that rely on that code. In numerous federal cases, criminal defendants have sought access to NIT code, and courts have had to decide whether the government must disclose the code. The government’s interest in confidentiality is inherently at tension with criminal defendants’ right to discovery and information material to their defense.
In order to make informed decisions about disclosure, courts must be cognizant of the equities at stake and understand technical details about NITs. Courts can better equip themselves by holding ex parte and in camera proceedings, and appointing experts to augment their understanding of technical issues. These procedures can ensure that the government is held accountable, defendants’ rights are protected, and NIT code is preserved. As the Dark Web expands, cybercrime is likely to become more pervasive, and criminal actors will devise more sophisticated means of anonymizing their presence online. Law enforcement will have to respond creatively and courts must be prepared to tackle novel issues that straddle technology and law.

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.

It has been more than sixty years since Brown v. Board of Education, and our country still presents children with dual and unequal systems of education. Not only are students segregated between school districts, but segregation is happening within school buildings as well as through tracking. Tracking is the process by which students are placed into higher or lower subject-specific courses such as math or science—sometimes as early as elementary school—based on their perceived abilities. This practice prohibits many students from accessing high-level courses. Courses such as Advanced Placement (AP) and honors classes have become indispensable for applying to college, but under a tracked system, if students do not take advanced classes in middle school, they will likely not be able to take advanced courses before graduating high school. Proponents of tracking argue that it is an efficient model of education that allows students to learn based on their skill level, but research shows that students are tracked along racial and class lines rather than on “ability.” Tracking causes both academic and psychological harm to students in lower tracks, and the opportunities students in higher tracks receive, as opposed to their innate intellectual abilities, are what cause them to succeed. In this Note, I argue that tracking is an inherently inequitable system that should be abolished since it denies so many students the resources, learning opportunities, and access to higher-level courses needed to succeed in today’s society. The legal tools that have been employed to dismantle this system under federal law—the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act—have had limited success, so this Note points to state law as a possible solution. State constitutions contain educational mandates and equal protection clauses that together require states to provide children with an equal educational opportunity. Under this doctrine, many courts have established that states must provide students with the opportunity to gain the skills necessary to compete in a changing society. Although state equal educational opportunity litigation has primarily occurred in the school finance context, this legal tool could be extended to tracking. A finding that tracking violates a student’s right to an equal educational opportunity would require school districts to detrack and open the door so that all students, regardless of race, class, or parental influence, have the opportunity to succeed.

In 2012, the Second Circuit held that under the First Amendment, pharmaceutical manufacturers have a right to promote their drugs for uses for which that they have neither been clinically tested nor FDA-approved. Weighing heavily in the Second Circuit’s analysis was the argument that the FDA’s prohibition on so-called “off-label speech” inhibited physicians’ access to complete information, thereby harming public health. That line of reasoning has also created skepticism within Congress of the FDA’s policy. Others argue that the prohibition on off-label speech is necessary in order to incentivize manufacturers to clinically test their drugs for all intended uses—a process that not only allows the FDA to certify the drug as safe and effective in each of its uses, but also creates a larger data set about a drug’s effects before it begins to be marketed and prescribed. If manufacturers can market their pharmaceutical products for unapproved uses, they have reduced incentives to seek FDA approval, especially because the required clinical tests are extremely costly. Whatever one believes about a policy of permitting off-label promotion, it is clear that it not only creates benefits, but it also creates costs. This Note considers regulatory and common-law tools to reduce those costs. It rejects available regulatory tools, because either they are too weak to change manufacturers’ incentives to conduct clinical tests, or they suffer from the same constitutional questions that troubled the Second Circuit. Instead, this Note argues that courts can hold manufacturers to a common-law duty to test their drugs for each use for which they market them, and it outlines what such a duty might entail. Such a solution, if properly implemented, would not only mitigate the concerns about the liberalization of off-label promotion, but it would also be supported by modern products liability doctrine.

“Supported decision-making,” an alternative to guardianship that allows an individual with an intellectual or developmental disability to retain his or her legal capacity and make decisions with the assistance of trusted supporters, has been gaining traction in the United States since the mid-2000s. Scholars have highlighted the significance of the UN Convention on the Rights of Persons with Disabilities (CRPD), which entered into force in 2006, in explaining the recent rise in interest in supported decision-making across the world. CRPD Article 12 recognizes that people with disabilities are entitled to equal recognition of their legal capacity by states parties and requires states parties to provide the support that people with disabilities may need in exercising legal capacity. In 2015, Texas became the first state in the United States to pass legislation formally recognizing supported decision-making agreements as alternatives to guardianship. Attention to Texas’s experience suggests, however, that the CRPD may have limited salience in conservative state legislatures, and demonstrates that other forces are contributing to the appeal of supported decision-making in the United States today. Part I provides a brief overview of guardianship and supported decision-making, and discusses how supported decision-making has many features that are simultaneously appealing to actors within the disability rights movement and American political conservatives. Part I next discusses Texas’s initial interest in supported decision-making and its 2009 supported decision-making pilot project. Part II identifies two issues that put guardianship in general on Texas legislators’ agendas in the years leading up to the passage of supported decision-making legislation: the issue of guardianship abuse and concerns about the impact of the aging of the population on probate courts. Part III explains how advocates organized to draft and pass supported decision-making legislation and other guardianship reform bills. Section A provides an overview of the legislation ultimately passed; Section B focuses on the organization of the Guardianship Reform and Supported Decision-Making Workgroup (GRSDM) and its community-organizing style of work; Section C explores how GRSDM won the support of key, influential stakeholders; and Section D shows how different actors used different narratives to promote sup- ported decision-making, with some emphasizing self-determination, while others emphasized efficiency and cost savings. Part IV discusses lessons that can be applied in other states and Texas’s implementation efforts so far.

When it was first enacted, the Individuals with Disabilities Education Act (IDEA) had the potential to function both as a progressive statement on the rights and needs of children with disabilities and as a concrete mechanism for promoting the educa- tional progress of students with special needs—a population that had previously been all but denied access to the classroom. Yet despite the Act’s potential, over forty years of court precedents interpreting the Act have resulted in a diluted, unimaginative reality. The result is a system of inadequate education for students who most need educational revitalization: (1) a “continuum of alternative placements” provision that allows schools to provide students with only a bare outline of one-size-fits-most, group-based programming; (2) a “least restrictive environment” provision that does little to require that schools place students in public, integrated settings; and (3) an “educational benefit” standard that is far too comfortable with the status quo. This Note begins by tracing the failures of the IDEA in the delivery of special education today, characterized by the low academic achievement of students with disabilities, high rates of incarceration and exclusionary discipline, and a lack of imagination on the parts of districts and teachers. The Note then proceeds to explain how educational inaction has been allowed to persist through a policy of judicial deference to districts, with courts failing to demand bold action or creative generation of new and innovative special education programs. Despite these failures, this Note argues that the Supreme Court’s recent decision in Endrew F. v. Douglas County School District RE-1 can be used to help advocates move courts and districts out of the largely stagnant provision of special education services, where schools continue to rely on the same ineffective and dated programs rather than developing new methods to reach children with disabilities who continue to struggle in school. This Note argues that the language of Endrew F. can be read to promote a more rigorous, guided process of program development, helping advocates evaluate a district’s process and communicate failures to courts in a way that authorizes courts to act to correct these failures. In moving beyond the status quo and requiring that schools engage in constant growth, Endrew F. has the potential to solve the “puzzle” of the IDEA’s three primary provisions which, through court interpretations and decades of neglect, has led to a stalemate that incentivizes inaction rather than solutions. This Note’s novel interpretation of Endrew F. encourages a more robust reading of the Act, which will in turn support the growth and development of children with disabilities across the nation’s public schools.

The resolution of federal congressional election contests implicates a tension between states’ Article I, Section 4 power to conduct elections for federal office and Congress’s Article I, Section 5 power to decide the elections of its members. The seminal Supreme Court decision on this issue, Roudebush v. Hartke, held that state courts may order administrative recounts in congressional elections because these decisions require state courts only to engage in “nonjudicial functions” and do not impinge on Congress’s ability to make independent and final decisions in these contests. The Roudebush decision has, in some cases, been interpreted expansively, permitting electoral losers to seek substantive post-election remedies (such as new elections) simultaneously in state courts and in Congress. This “Congress-and-courts” approach to deciding congressional election contests is problematic in light of constitutional considerations, federalism concerns, and the values underlying election contest resolution. This Note argues that the Roudebush decision instead should be interpreted narrowly and, therefore, that all congressional election contests should be resolved by Congress exclusively.

The nature of corporate criminal liability and the extreme consequences of indictment or conviction place great pressure on corporations to cooperate with federal prosecutors as they investigate corporate wrongdoing. This pressure often leads corporations to disclose privileged corporate communications, including internal investigation reports and notes from employee interviews, to aid prosecutors in their investigation. In most jurisdictions, once these documents are disclosed, the protections of the attorney-client privilege are waived as to everyone—a total waiver. However, in a minority of jurisdictions, when privileged corporate communications are disclosed to the government as part of a criminal investigation, the privilege is waived only as to the government and remains to prevent discovery by third parties, including civil plaintiffs—a selective waiver. Courts have provided various rationales for both positions, although none has been universally endorsed and all are subject to criticism. This Note provides a new justification for the selective waiver rule. It argues that utility-maximizing prosecutors will be more likely to ask for these critical privileged corporate communications under a selective waiver rule because of the high costs of the total waiver rule. This, in turn, will lead to a more efficient and robust investigation and prosecution of corporate crime.

Scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student speech protection and the Supreme Court’s subsequent decisions, Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick (the Bong Hits case) as a considerable retreat from this mark. By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires courts to defer to educators’ reasonable determinations of what speech may cause a substantial disruption and provides only very modest protection for student speech. Comparing the Tinker standard to those of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. Deference under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech without eliminating the limited protection provided by Tinker’s required showing of potential disruption. By contrast, the sole protection Bong Hits provides is in maintaining the line between advocacy and nonadvocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech. To illuminate the differences between the Tinker and Bong Hits tests, this Note analogizes to Justice Oliver Wendell Holmes’s “clear and present danger” and Judge Learned Hand’s “express advocacy” tests and concludes that the special policy considerations that apply to the school environment do not justify departing from the principles underlying these paradigmatic First Amendment standards.

When a court invalidates a federal government policy, it must then decide the scope of the remedy. A common remedy is an injunction—a judicial order prohibiting enforcement of the policy. Traditionally, lower federal courts enjoined the government only from enforcing the invalidated policy against the victorious plaintiff, leaving it in place against other members of the public. A nationwide injunction, however, forbids the government from enforcing the policy against anyone in the country, effectively taking the policy out of circulation. This Note argues that nationwide injunctions contravene three core structural principles of the federal courts: (1) the regional design of the courts of appeals without intercircuit stare decisis, (2) the Supreme Court’s holding in United States v. Mendoza that the federal government is not subject to non-mutual issue preclusion, and (3) the doctrine of intercircuit nonacquiescence. It concludes that nationwide injunctions against the federal government should be disfavored and that such injunctions should not extend beyond the circuit of the enjoining court. Simply put, lower federal courts should not make nationwide law.