Notes

In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court rejected the argument that a new Title VII violation occurred and a new charge-filing period arose each time an employer issued a paycheck to an employee that reflected some past, uncharged discrimination (the so-called “paycheck accrual rule”). This opinion was effectively reversed when President Obama signed his first bill into law: the Lilly Ledbetter Fair Pay Act of 2009. The new law amended Title VII such that an unlawful employment act occurs “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”

Considering issues of fairness to employees and employers, as well as the societal interest in repose, this Note examines the Ledbetter Act and measures it against two alternatives: (1) application of a discovery rule and (2) use of the doctrine of equitable tolling for fraud. The Note contends that the Ledbetter Act is a flawed way of addressing the problem that victims of pay discrimination face in detecting discrimination
and bringing suit within the limitations period. Concluding that the discovery rule has been foreclosed by Congress and the courts, this Note argues that equitable tolling for cases of fraudulent concealment is a sensible, viable way of giving blamelessly ignorant plaintiffs access to the courts and avoiding the drawbacks of the Ledbetter Act.

Many scholars assert that the common law state secrets privilege is abused by government officials who use it to cover up misconduct or prevent embarrassment. For the second time in two sessions, Congress is considering a bill that would require substantive judicial review of the privilege: If the government invokes the privilege, a judge would be required to review each document and determine whether its revelation would harm national security. This Note argues that judicial review alone is unlikely to reform the state secrets privilege effectively because it does not address the underlying incentives that encourage abuse of the privilege by the executive branch. A risk-adverse judiciary is unlikely to challenge assertions of grave harm to national security except in the most blatant cases of abuse. This Note builds the case that administrative law–based reforms will deter government abuse more effectively than judicial review alone by creating disincentives that discourage invocation of the privilege. By making invocation of the privilege more administratively burdensome and by putting the professional credibility of officials who may not benefit from its use on the line, the reforms proposed here would more effectively discourage overreaching in the state secrets privilege context.

By allowing the condemnation of private homes to make way for a “more attractive” private development, the U.S. Supreme Court, in Kelo v. City of New London, infuriated the libertarian legal academy and much of the public. Even worse from the perspective of individual rights, the Kelo Court blessed the taking without requiring either the City of New London—the condemnor—or any private developer to actually undertake and complete the project that justified the taking. Many calls for further property protection argue that takings like the one at issue in Kelo are not “public” enough to be permissible under the Fifth Amendment. In this Note, I focus on the word “use,” rather than “public,” in the Takings Clause. Instead of requiring that condemnation of land be proposed for a purpose more “public” than economic development, I would require that the land taken actually be used for the claimed public purpose. My proposal would honor the constitutional rights of property holders and deter inefficient takings while allowing truly beneficial takings to proceed.

In 2007, the International Court of Justice defined the scope of state responsibility under the Genocide Convention for the very first time when it reached the merits in the Genocide Case, a case arising from the violent breakup of the former Yugoslavia. The opinion immediately spurred extensive academic commentary, much of which was critical of the Court’s ultimate holding that Serbia had not committed genocide despite its well-documented role in the Srebrenica massacre. While the Genocide Case can be read as a disappointment, and the Court’s analysis is vulnerable to normative critique, this Note argues that it was nonetheless an important victory in the movement toward greater state accountability for genocide, especially considering the context in which the Court acts and the limitations imposed on its independence by the practical need for legitimacy. Although the Court raised onerous evidentiary hurdles for establishing state responsibility for the direct commission of genocide, it managed simultaneously to impose upon states a clear duty to rein in non-state actors over whom they exercise influence by interpreting the state obligation to prevent genocide broadly. This broad duty to rein in non-state actors has important implications not only for the Court’s own jurisprudence but also extrajudiciously within the customary framework of state responsibility, by empowering the general international community to enforce states’ obligations to curb genocidal actors within their reach.

In the United States’ early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century but then died out—a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important, reasons for the demise of instructions.

The six-year term length for U.S. senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming permanently entrenched. Instructions were held in place after the Founding only by constitutional culture, but even this did not last. After Southern Democrats vigorously used instructions to purge Whigs from the Senate in the 1840s and 1850s, the use of instructions was indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. Following the War, the roles were reversed: The states—especially the Southern states—were taking instructions from the federal government. Today, instructions still exist but as nonbinding “requests” for action. This new conception of instructions returns us full circle to James Madison’s conception of the proper role of instructions: a right of “the people . . . to express and communicate their wishes” to their representatives.

This Note argues against the use of the prudential political question doctrine (PPQD), as exemplified by the Vieth v. Jubelirer plurality opinion. In Vieth, the Supreme Court avoided formulating a standard for adjudicating the constitutionality of partisan gerrymandering due to a claimed lack of a “discernible and manageable standard.” This meant, according to the plurality, that no proposed doctrinal test was both concrete enough to be workably deployed by lower courts and discernible enough in the constitutional text, history, and structure, inter alia. Although the Vieth plurality opinion presents itself as based on universally applicable metadoctrine determining what is and is not a discernible and manageable doctrinal test, this Note argues the Court’s use of the PPQD is ultimately based on a gestalt prudential judgment about the wisdom of intervention in the particular area of partisan gerrymandering.

This Note then argues that the PPQD leads to negative consequences for future litigants and judicial legitimacy. The PPQD sends litigants on a wild goose chase for a perfect doctrinal standard, when it seems clear that no standard will satisfy the Vieth plurality. It also invites litigants to argue about what a discernible and manageable doctrinal test is in the abstract, rather than to address the particular legal issue at hand. These diversions insulate the judiciary from legitimate criticism of the grounds of its decisions. This Note then compares the PPQD to another option for judicial avoidance: a merits standard that is almost impossible for plaintiffs to meet in practice, such as rational basis review. This Note concludes that a stringent merits standard is a superior mechanism for judicial avoidance because it does not carry the same high costs for litigants and judicial legitimacy as the PPQD. Additionally, it allows the Court to exit from active adjudication of an issue while still preserving its ability to intervene in egregious cases.

First and Fourth Amendment Limits on National Security Letters

Congress’s passage of the Patriot Act after 9/11 expanded the Federal Bureau of Investigation’s (FBI) information-gathering authority to issue national security letters (NSL). Without any judicial review, the FBI issues NSLs to telecommunications providers to obtain customer subscriber information, including sources of payment, records of Internet activity, addressees and subject lines of emails, websites visited, and search queries. Because a subscriber has voluntarily given the data to a third party, the NSL is not considered a “search” for Fourth Amendment purposes, under the so-called “third-party doctrine.” To overcome this constitutional shortcoming, commentators have argued that the chilling effect NSLs have on the exercise of free speech makes such investigations suspect under the First Amendment.

Despite the appeal of the First Amendment argument, this Note argues that a subscriber’s free speech claim against an NSL faces more significant doctrinal hurdles than scholars have recognized: The First Amendment does not directly protect privacy, making a chilling effect claim hard to sustain. Furthermore, the standard of review in First Amendment cases may be too deferential to the government because the Patriot Act does not directly target speech, only data related to communicative activity. Instead, this Note proposes statutory reform for more enhanced judicial review and considers how the First Amendment could be used, not as an independent challenge, but rather as a basis for modifying the third-party doctrine. The Note concludes that the concern for chilling free speech is valid, and although First Amendment doctrine may not provide the means to defeat an NSL, concern for free speech interests could provide courts with a rationale for finding a reasonable expectation of privacy in Internet data, thus strengthening our currently impoverished Fourth Amendment safeguards.

Scholars have argued that the malpractice system would be better off if patients had the option of waiving the right to sue for malpractice in exchange for a lower fee. Some doctors have tried to follow this advice by having their patients sign medical malpractice exculpatory agreements, but courts usually have refused to enforce these agreements, invoking a void-for-public-policy rationale. This Note argues that a doctor could maximize the odds that a court would enforce her medical malpractice exculpatory agreement by somehow ensuring that she will never find out whether her patient decided to sign. A case study of the law in New York highlights the ambiguity in the void-for-public-policy rationale as to whether the simple fact that the doctor-patient relationship is implicated in a medical malpractice contract is fatal to enforcement, or whether such a contract could be enforced if it were nonadhesive and clearly worded. A behavioral-economic analysis of the patient’s decision to sign a medical malpractice exculpatory agreement reveals a reason why the agreements may be categorically barred: Some patients might unwillingly agree to sign for fear of signaling distrust or litigiousness to their doctors. A confidential contract—in which the offeror never knew whether the offeree had accepted or not—would avoid this signaling effect. A provider using such a contract could distinguish those cases in which the doctor-patient relationship alone seemed to justify nonenforcement as not involving this prophylactic measure.

In the renowned pair of higher education cases decided in 2003, Gratz v. Bollinger and Grutter v. Bollinger, the Supreme Court affirmed the value of diversity as a compelling state interest in the higher education context, while placing careful limits on the means through which a university may utilize admissions to achieve diversity within its student body. As the challenge of creating a narrowly tailored diversity plan has grown, universities have devised a variety of ways to attract, admit, and retain a racially diverse student body, recognizing the unique challenges and frustrations that minority students may face in higher education. Schools such as the City University of New York, the University of Maryland, and the Massachusetts Institute of Technology have utilized scholarships, targeted classes and academic programs during the summer and school year, mentoring, and other student support programs in an effort to raise the low numbers of minority students enrolling in, and graduating from, their institutions. This Note applies the Supreme Court’s affirmative action jurisprudence to such programs, and proposes a framework for analyzing the programs that will allow them to meet the high standards of equal protection analysis. The Note concludes that, though many colleges have ended their programs or opened them to students of all races, such drastic measures are unwarranted.