Notes

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.

The ubiquity of cell phones has transformed police investigations. Tracking a suspect’s movements by following her phone is now a common but largely unnoticed surveillance technique. It is useful, no doubt, precisely because it is so revealing; it also raises significant privacy concerns. In this Note, I consider what the procedural requirements for cell phone tracking should be by examining the relevant statutory and constitutional law. Ultimately, the best standard is probable cause; only an ordinary warrant can satisfy the text of the statutes and the mandates of the Constitution.

While Indian tribes bordering the United States and Canada may share the same culture, the same ancestry, and even the same name, a descendant of common heritage may not be recognized as “Indian” in the United States, and thus not eligible to receive federal benefits. The federal government has the power to recognize an Indian tribe’s sovereignty and determine who is an “Indian” for tribal services, but limits such recognition to those tribes falling within the geographic limits of the United States. With respect to members of “border tribes” that historically traversed the U.S.-Canada border, “Indian” recognition can be denied to an individual because each federally recognized tribe is subsequently required to limit its membership to those whose lineage can be traced directly to that particular tribe’s location within the United States, regardless of tribal heritage predating the border. The result is a gap in recognition: Many descendants of border tribes are born and raised on one side of the border but only recognized as “Indian” on the other. In the United States, ineligibility for affirmative action—both public and private—is one symptom of this gap in recognition. This Note argues that non-recognition of American Indians for affirmative action purposes illustrates how the federal government’s failure to account for descendants of border tribes prevents the United States from wholly meeting its trust obligation, and proposes ways the government can permanently repair its trust relationship with Indian tribes in this narrow context. It discusses three methods for establishing cross-border affirmative action for American Indians: ratification of a bilateral agreement or enactment of domestic statutory reform within the United States, intertribal recognition of membership between U.S. and Canadian tribes, and a potential short-term solution calling upon private initiatives to embrace a broad cross-border definition of “Indian.” This Note concludes that intertribal recognition is impractical due to existing hostility— both on the part of tribes and their respective federal trustees—to the concept of dual tribal enrollment. Further, while private-sector mechanisms may provide a stopgap solution to the problem, they cannot adequately address the federal standards that perpetuate the gap in recognition. In order to fully cure this defect and fulfill the government’s enduring trust responsibility, Congress must take legislative action to close the gap in recognition and provide equal opportunity for affirmative action to all American Indians in the United States.

There is growing concern over the pharmaceutical industry’s ability to set and raise drug prices as it sees fit. The price of a drug that has not been protected by a patent for decades can suddenly increase—or “ratchet”—as much as 10,000%. This Note identifies the problem of ratcheting drug prices and considers whether these abrupt changes in drug prices derive from a longstanding problem inherent in the United States’ pharmaceutical regulatory regime. It then considers the most commonly suggested mechanism for countering high drug prices—stimulating competition in the pharmaceutical market—but ultimately concludes that focusing solely on increasing competition constructs an overly simplistic view of ratcheting drug prices. In order to find an effective solution to unexpected increases in drug prices, this Note evaluates a small subset of pharmaceuticals that have recently undergone a sudden price increase and separates the ratcheting events into two categories: (1) those that occur as a result of natural deviations in the market, and (2) those that occur due to business tactics that take advantage of vulnerabilities in the drug market. It concludes that under this categorization, antitrust law may provide an effective solution specifically directed at ratcheting events of the second category— those driven by anticompetitive behavior.

This Note challenges the Alt court’s restriction of the EPA’s authority to regulate Concentrated Animal Feeding Operations (CAFOs) and proposes that the EPA conduct a new rulemaking to address this issue. CAFOs pollute our nation’s waterways with contaminated manure, damaging our environment and injuring public health. Recognizing their potential to pollute, Congress included CAFOs within the statutory definition of a point source in the Clean Water Act in 1972. Fifteen years later, Congress amended the statute and exempted agricultural stormwater from the definition of a point source. Controversy surrounded the application of the agricultural stormwater exemption to CAFOs until 2003, when the EPA specified that the exemption only applied to precipitation-based discharges from the land application area of a CAFO when manure had been applied pursuant to prudent agricultural practices. Unfortunately, in Alt v. EPA, industry capitalized on the ambiguity in the Clean Water Act and secured a district court ruling expanding the agricultural stormwater exemption to include discharges outside the land application area, allowing CAFOs to further pollute our waterways. After providing the relevant history of CAFO regulation, this Note critiques the Alt decision—concluding that the court misinterpreted the agricultural stormwater exemption. Finally, it argues that the EPA should initiate a rulemaking and comprehensively define the agricultural stormwater exemption to prevent further environmental degradation and harm to human health.

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt. But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence. This relatively low standard can lead to a problem known as “disproportionate impact.” Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction. Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes. In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005. This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

Advances in reprographic technology have spawned inexpensive photocopiers, videotape recorders (VTRs), modems, computers, networks, and tape recorders capable of making high-quality copies. These inexpensive devices have improved the dissemination of information to all of society’s members. Unfortunately, however, the cheap pricing and wide availability of such devices have also caused a drastic increase in the unauthorized reproduction of copyrighted works.

In 1992 the University of Texas Law School (Law School) rejected the applications of Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers. These four applicants, who are white, subsequently filed suit against the State of Texas and the University of Texas, alleging that both the State and the Law School discriminated against them by using an affirmative action admissions process that placed black and Mexican American applicants in a separate admissions pool and consequently accepted members of those groups over nonminority students who had comparable grades and test scores. The plaintiffs argued that any use of race in the admissions process unconstitutionally infringed on their Fourteenth Amendment right to equal protection.