Notes

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

This Note argues that modern-day patent litigation lacks sufficient consideration of public policy concerns. In order to remedy this, I propose three potential solutions that would broaden standing in patent declaratory judgment actions, thereby allowing more plaintiffs who are likely to raise such arguments to have their day in court. First, I discuss expanding standing within the Supreme Court’s MedImmune framework, which requires courts to apply a broad all-the-circumstances test in determining patent declaratory judgment standing. Within this test, I urge courts to consider (1) the degree to which a potential infringer raises important public policy concerns and (2) the extent to which the potential infringer has a unique economic incentive to challenge the patent-at-issue. Second, I consider altering the framework for standing in patent declaratory judgment actions based on a reassessment of the fundamental justifications for standing doctrine generally. Observing that the traditional justifications for a standing requirement—and the separation of powers justification in particular—do not apply in the context of patent declaratory judgment actions, I suggest that the Supreme Court might craft a new standing framework. Third, I explore the extent to which Congress might statutorily expand standing in such cases. I conclude by noting that the post-grant opposition procedure created by the America Invents Act—the patent reform legislation signed into law in September 2011—is insufficient to assuage unease regarding the lack of public policy arguments in patent litigation. Courts might therefore look to standing in order to address this problem.

The civil litigation system aims to resolve disputes in an efficient, centralized, and final manner. In the context of mass tort litigation, one technique courts often use to achieve these goals is what I call “scaling up”: holding individual trials, and then applying results from these trials to similarly situated individuals. Scaling up, however, presents two difficulties. First, the technique risks compromising defendants’ Due Process rights by creating impermissible settlement pressure. Second, scaling up requires the initial court to structure the litigation so that it may serve as a template for follow-on proceedings; where this is not done, attempting to graft the results of one proceeding onto the remaining group of similarly situated individuals may simply lead to more protracted litigation.

Yet these difficulties are not inherent to the technique; in fact, courts can scale up in a way that avoids these problems. In order to mitigate the Due Process problem, courts should not apply the results of individual trials to subsequent trials involving similar claims until a substantial number of trials have been completed, and until it has become clear that any verdicts unfavorable to defendants are not flukes or outliers. And to ensure that scaling up does not simply lead to more protracted litigation, the initial trials should be structured so as to maximize the likelihood that individuals in follow-on litigation can invoke the findings under the issue preclusion doctrine of Parklane Hosiery v. Shore. The American Law Institute has made a proposal with these considerations in mind with respect to issue classes. This Note argues that a similar approach should be taken in the Multidistrict Litigation (MDL) process, where most mass tort litigation occurs today. This approach would be particularly useful if applied to one device that is being used with increasing frequency in the MDL process: the bellwether trial.

In response to the challenges of globalization, U.S. agencies at times reach agreements on regulations with their foreign counterparts and then subsequently implement those regulations domestically. Some have suggested that this model of rulemaking gives agencies determinative incentives to implement the international regulation as negotiated—and thus to ignore public comments in the domestic rulemaking process. In this Note, I use the Basel Accords as case studies to show that agencies do not necessarily implement international agreements as a fait accompli. Nevertheless, I argue that international agreements may illegitimately influence the domestic rulemaking process and that courts must therefore be more vigilant in reviewing these types of regulations.

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.

Over the last fifty years, courts and scholars have debated the utility and reliability of informants—individuals who alert law enforcement to the occurrence of crime, point law enforcement in the direction of potential perpetrators, and help law enforcement prosecute those eventually charged. There are three primary types of criminal justice informants: (1) criminal and confidential informants, (2) anonymous tipsters, and (3) citizen-informants. Judicial examinations and scholarly critiques of informants have focused almost exclusively on the first two categories. These informants are deemed suspect, either because they are so enmeshed in the justice system that they have questionable motives, or because they inculpate others under a veil of anonymity. Meanwhile, the third category of informant—the citizen-informant—has evaded rigorous scrutiny because of the “citizen-informant doctrine,” a premise embraced by the federal courts and many state courts. The citizen-informant doctrine reasons that individuals who witness or fall victim to crime and willingly identify themselves to law enforcement officers are presumptively reliable. This presumption enables law enforcement officers to conduct searches and seizures that would otherwise be unlawful based on uncorroborated reports from untested civilians. The citizen-informant doctrine has major consequences for the robustness of the Fourth Amendment’s protection against unjustified government intrusions, and it has an enormous impact on the integrity of police investigations and criminal prosecutions. Yet this doctrine rests on shaky foundations that have heretofore been insufficiently probed. This Note proposes that courts require law enforcement officers to conduct more exacting inquiries before relying on the word of a so-called citizen-informant.

The federal courts are currently divided on how to determine the diversity citizenship of trusts. Several circuits hold that trusts take the citizenship of their trustees. Another circuit holds that trusts take the citizenship of the trust’s beneficiaries, and yet another considers the citizenships of both the trustees and the beneficiaries. But beyond this circuit split, a more significant problem plagues the law in this area: The courts of appeals have failed to recognize the distinction between traditional and business trusts. The former—what is most commonly thought of as a trust—is a gift and estate planning tool. The latter is an alternative to incorporation, and is designed to run a business and generate profit for investors.

In this Note, I examine the differences between traditional and business trusts in the context of federal diversity jurisdiction. After discussing the history of diversity jurisdiction and the nature of these two forms of trusts, I explore the current circuit split over the citizenship rules for trusts. I then propose a new rule that fits within the current Supreme Court case law in the field: Traditional trusts take the citizenship of their trustees, while business trusts take the citizenship of their members—the beneficiaries. Having proposed a rule that depends upon the type of trust at issue, I conclude by explaining that a trust can be classified by determining the primary purpose for which it was organized.

Transgender youth in foster care are not safe. While these youth face the daily danger of physical violence at the hands of others in their foster care group homes, administrators of child welfare services have shown deliberate indifference to these risks, and staff in foster care group homes do not effectively protect the physical safety of transgender youth in their care. Because resource constraints make it impossible to place all transgender youth in LGBTQ-only group homes, we need a solution that will make transgender youth safe in the group homes that already exist. This Note argues that the current New York City foster care system violates the substantive due process safety rights of the transgender youth under its care, and proposes legislation that would presumptively mandate transgender-only bedrooms and bathrooms. Such legislation would provide safe spaces within existing group homes in order to fix current constitutional violations.

The American labor movement is in trouble. As union density declines and worker organizing becomes more difficult, a relatively new model, the worker center, has emerged to organize low-wage immigrant workers. Worker centers devise a broad range of strategies and internal structures to meet the challenges of the contemporary organizing landscape, and these strategies would not be possible were worker centers considered labor organizations under labor law. Recently, anti-union groups and members of Congress have shifted focus to worker centers, urging that they be regulated under the National Labor Relations Act. By examining the history of labor law and the structure of worker centers, this Note argues that regulation of worker centers under the NLRA would be inappropriate, ahistorical, and an unreasonable restriction on the associational rights of workers.