Notes

Federal judges are expected to conduct themselves differently than their counterparts in the political branches. This Note considers the policy and historical reasons used to justify this different standard of conduct and concludes that these justifications are largely unsupported or overstated. These erroneous justifications obfuscate the debate over extrajudicial conduct and may result in a suboptimal level of extrajudicial activity.

Intersexed children are born with genitalia and/or reproductive organs that do not look like those of most biological males or females. Doctors and parents usually assign an intersexed child a gender at birth or during early childhood. Occasionally, an individual will reject his or her gender of assignment and will want to take on a different gender role. Some clinicians and intersex advocates instruct parents to accept an intersexed child’s expressions of gender identity and to support the child’s gender role change. There is a risk, however, that parents may resist or prevent a child’s gender transition due to their own discomfort with the idea or based on a physician’s recommendation. A statutory framework that allowed intersexed minors to complete a “social gender transition,” coupled with a provision equating parental interference with this transition with actionable neglect, would protect intersexed children’s autonomy and prevent the trauma that can result from a forced existence in a gender role with which a child does not identify. The proposed framework would likely survive a constitutional challenge by the parents of an intersexed child because the harm caused by the parental decision to interfere with a child’s gender expression removes such interference from the realm of constitutionally protected parental decisionmaking.

Generally, in order to infringe a U.S. patent, the entire patented invention must be practiced within the United States. However, as technology evolves it is becoming harder to contain inventions within national borders. Specifically, the advancement of networking and communications technologies allows for the rapid, cost-efficient dissemination of information across countries’ borders. As a result, the number of inventions that are being practiced in multiple jurisdictions, or the practicing of divided infringement, is on the rise. Potential infringers that commit divided infringement are practicing patented inventions, escaping liability in all jurisdictions, but still reaping the rewards of the American market. Consequently, potential infringers who commit divided infringement are undercutting the incentive to innovate, the primary purpose of the patent system. To solve the problem of divided infringement, this Note proposes expanding the extraterritorial scope of U.S. patent law by adopting a substantial effects test, limited by comity concerns.

DNA databases enable extremely accurate criminal identification, and a database with appropriate privacy safeguards could be a boon not only for law enforcement but for civil libertarians as well. Unfortunately, current DNA databases lack important precautions and expose DNA donors to serious risks of abuse. The courts that have heard Fourth Amendment challenges to these databases have uniformly upheld them using one of two different rationales. Some courts have held that DNA databases serve a special need, and others have held that the convicted offenders targeted by current statutes have diminished privacy interests in their DNA. However, neither rationale provides a convincing justification for compelling individuals to provide DNA for a database, with or without safeguards. The problem is not with the substantive reasonableness of DNA collection for an ideal database, but with crafting a judicial decision procedure that allows only reasonable databases and not unreasonable ones. The solution proposed by this Note, accordingly, is an alternative decisionmaking procedure that enlists the assistance of the political process. Under the “universality exception” to the warrant requirement proposed by this Note, a search is reasonable if it is authorized by a statute that truly applies equally to every member of the population. The political process leading to the enactment of a universal DNA database, which this exception would require, would ensure that any such database had appropriate safeguards.

Although government searches generally must be supported by warrant and probable cause, the Supreme Court rarely has applied this requirement in penal contexts such as prison, probation, and parole. In order to justify the government’s broad search authority in those contexts, the Court has created a patchwork of categorical rules and skewed balancing tests based on search targets’ diminished expectations of privacy. This Note argues that the Court’s current approach is unsound: Broad government search authority is justified in certain penal settings, but only because those settings create compelling government needs, not because the search targets have diminished privacy interests. Penal searches should therefore be analyzed under the “special needs” doctrine, which was designed for just this type of situation—where the government has compelling interests above and beyond those found in typical law enforcement contexts. A special needs analysis would allow courts to address the government’s unique interests without devaluing the strong privacy interests at stake. Most importantly, it would impose an additional safeguard to cabin discretion and protect against harassment: Warrantless penal searches could be performed only with individualized suspicion of wrongdoing or through a neutral, nondiscretionary plan.

This Note examines state legislative responses to Kelo v. City of New London, the recent U.S. Supreme Court case that held that the exercise of eminent domain for private development does not violate the public use requirement of the Takings Clause. In response to Kelo, many states are legislatively prohibiting the use of eminent domain for development generally, but continuing to allow its use for development in blighted areas. This Note discusses the problems with such legislation and concludes that states should avoid crafting rules that allow the use of eminent domain for development solely in blighted areas. Such rules would improperly burden poor and minority communities and imbalance the political process by which rules on eminent domain for development are established.

The written nature of America’s Constitution has been traditionally regarded as a constitutional virtue, and more recently dismissed as an irrelevancy of form. However, the concept of “writtenness” itself, in the constitutional context, remains vague and undefined. Through a comparison of the United States and United Kingdom constitutions, this Note identifies the essential characteristics of a written constitution and examines how such writtenness affects the achievement of the rule of law in a society. The Note argues that an unwritten constitution may prove as conducive to important rule-of-law values as a written constitution, if not more so, and challenges the general perception of writtenness as an unequivocally desirable aspect of our Constitution.

In recent years, financial economists have authored an influential series of articles that link strong minority shareholder protection—exemplified by private enforcement of securities regulations—to greater financial market development. Their findings, which suggest that transition economies seeking larger financial markets should reform their legal institutions so as to strengthen private enforcement, have practically become conventional wisdom, and provide support for those who argue that China needs to improve investors’ ability to sue listed companies in order to encourage growth in its financial markets. This Note argues, however, that in China’s current legal and political environment, various obstacles preclude private enforcement from playing a significant role in market regulation. A more viable strategy would be to strengthen public enforcement. It is more likely to be effective in China’s current environment, will improve investor protection, and has been shown to have positive effects on market development.

In recent years, financial economists have authored an influential series of articles that link strong minority shareholder protection—exemplified by private enforcement of securities regulations—to greater financial market development. Their findings, which suggest that transition economies seeking larger financial markets should reform their legal institutions so as to strengthen private enforcement, have practically become conventional wisdom, and provide support for those who argue that China needs to improve investors’ ability to sue listed companies in order to encourage growth in its financial markets. This Note argues, however, that in China’s current legal and political environment, various obstacles preclude private enforcement from playing a significant role in market regulation. A more viable strategy would be to strengthen public enforcement. It is more likely to be effective in China’s current environment, will improve investor protection, and has been shown to have positive effects on market development.

The federal circuit courts are divided on the question of whether the federal courts’ supplemental jurisdiction power encompasses permissive state law counterclaims that lack an independent basis of federal jurisdiction. By analyzing the arguments set forth in various circuit court decisions, this Note develops a new approach for assessing the availability of supplemental jurisdiction over permissive state law counterclaims. It argues that the federal courts may assert jurisdiction over state law counterclaims only when the federal interest supports hearing those state law claims.

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s pub- lishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.