Notes

Substantial Assistance and the Cooperator’s Dilemma

The “substantial assistance” provisions of the U.S. Sentencing Guidelines dominate the practice of modern federal criminal law. This primary mechanism by which criminal defendants who provide valuable information to federal prosecutors are compensated for their cooperation—namely, in the form of a sentence either below the calculated Guidelines sentencing range or, more significantly, below any mandatory minimum—has created a system where defendants are incentivized to incriminate themselves and as many others as possible, all without any guarantee that their cooperation will actually result in a lesser sentence. This Note explores the operation of this provision; the consequent “cooperator’s dilemma” it creates for defendants considering cooperation; and the unreliable, unfair, and unethical results it generates. It offers a novel incremental solution: an intermediate departure provision called “good faith cooperation,” whereby defendants who have attempted to cooperate but do not obtain substantial assistance motions can move to receive sentences below guidelines ranges and mandatory minimums on the basis of their attempted assistance. This provision provides a politically feasible option for legislators and commissioners that addresses multiple concerns regarding the current system without entirely upending the practice of federal criminal law as it exists.

New York’s Persons in Need of Supervision and Parental Rights

When parents find they can no longer control their children—they are skipping school, staying out past curfew, and even getting in trouble with the police—what can they do? That answer depends, of course, on what types of resources are available to them. For unprivileged parents in New York State, the answer is often Persons in Need of Supervision (PINS). Intended to be a tool for parents in these situations that avoids exposing children to the criminal justice system, enlistment in PINS has become a “risky resource” to parents. In exchange for the support of county diversion programs offered by PINS, parents relinquish the control they have over their children’s lives. This is not required to happen through affirmative and fully informed waivers of their control, even though parents’ rights are afforded constitutional protection. Instead, parents are assumed to implicitly waive their right to raise their children by filing a request for PINS services. This Note argues that this system is out of line with Supreme Court precedent defining and outlining parents’ substantive due process rights and has serious consequences for children and their families. To remedy these constitutional and policy-based issues, this Note proposes that New York cease treating PINS petitions as implicit waivers of parental control. Though certainly not a complete fix for all concerns that arise from the PINS system, this solution would at least partially correct the imbalance between parents and the state under the PINS regime.

Judicial Review, Liability Rules, and the Habeas Corpus Act of 1863

A national security emergency justifying the elimination of full judicial review and remedies for executive action is often analyzed as an exceptional, distinctive challenge to the rule of law. However, the possibility of irreparable harm frequently supports bypassing judicial procedures in more pedestrian peacetime law, such as an exigent-circumstances exception to the Fourth Amendment’s warrant requirement or a preliminary injunction to avoid irreparable harm before a trial on the merits. While the scale may be different in national security crises, the problem is the same: how to maintain the rule of law when the traditional procedures and remedial doctrines of a reviewing institution may be ill-suited for avoiding irreparable harm in the time required for judicial review.

This Note uses the immunity provisions of the Habeas Corpus Act of 1863—in which Congress explicitly eliminated legal remedies during the greatest national crisis of American history—to illuminate the broader principles behind the availability of judicial remedies in exigent circumstances. In “routine” exigencies, such as a request for a preliminary injunction or exceptions to the warrant requirement, a shortcut around full procedure for the determination of rights and duties is permitted subject to the availability of judicial review after the intervention, and, often, compensation. The immunity provisions of the Habeas Corpus Act of 1863 cut off both of these remedial functions. Such immunities defeat the compensation purpose of remedies unnecessarily; as remedies in “routine” emergency interventions demonstrate, the compensation and judicial review functions need not always result in deterrence of executive action in a crisis. Immunity provisions such as those in the Act also hinder the development of the law and increase uncertainty for future actors and their possible future victims, even outside emergency situations. This Note argues that the best approach to judicial review in national security crises is not to eliminate remedies entirely, as the Habeas Corpus Act attempted to do, but to “code-switch” from a regime of property rules to a regime of liability rules in order to preserve victim compensation and the rule of law.

Consent, Registration Statutes, and General Jurisdiction After Daimler AG v. Bauman

This Note evaluates general personal jurisdiction based on a “consent-by-registration” theory, arguing that this old basis of jurisdiction is unconstitutional after Daimler AG v. Bauman. Daimler overturned nearly seventy years of law on general jurisdiction, and in doing so provoked the return to a basis of jurisdiction dating back to Pennoyer v. Neff, with plaintiffs arguing that foreign corporations “consent” to general jurisdiction when they register to do business in states outside their place of incorporation or principal place of business. But Pennoyer is dead. Thus, the question is whether Pennoyer‘s ghost provides a constitutional basis for general jurisdiction, even after Daimler‘s severe limitations of it.

Defending the Privacy Act’s Complete Civil Remedies Exemption

The Privacy Act of 1974 places limitations on what federal agencies may do with the personal information they collect from the public. As its name suggests, a primary purpose of the law is to protect the privacy of individuals by mandating that agencies’ systems of records be maintained in particular ways. At the same time, the Act preserves the ability of agencies to pursue their statutory goals by permitting law enforcement agencies to exempt their systems of records from select provisions of the Act. This Note concerns the scope of one of those exemptions, referred to as the “general exemption.” Specifically, it addresses a statutory ambiguity surrounding whether these agencies may completely exempt their records from the Act’s civil remedies provision, thereby foreclosing civil liability for all violations of the Act. This Note answers that question in the affirmative, and it supports that answer through two independent modes of analysis. First, the Note argues that, using traditional tools of statutory interpretation, the best reading of the portions of the Privacy Act in question is one that recognizes the complete exemption. Second, the Note meets a particular objection to that reading: that permitting a complete civil remedies exemption would authorize and encourage widespread violations of the Privacy Act, thereby “defanging” the Act. The Note maintains that civil remedies are not theoretically necessary to protect substantive rights, and that the particular context of the Privacy Act is replete with examples of nonjudicial institutions serving as effective checks—or fangs—on agency compliance with the law.

An Enhanced Regulatory Role for Executive Agencies in Title VI Disparate Impact Enforcement

Title VI charges the federal government with removing discrimination in our public institutions. In light of disparate impact claims concerning a range of racially discriminatory education practices, this Note makes the case for the benefit of an official regulation from the U.S. Department of Education—as a federal arm—that more specifically informs the disparate impact framework’s educational necessity standard. This regulation would not only aid plaintiffs seeking to challenge harmful educational practices, but also provide courts with more specific and authoritative guidance in adjudicating Title VI disparate impact claims. This Note argues that a beneficial starting point for such a regulation would make clear that a discriminatory school policy should be evaluated based on whether a school policy advances equal educational opportunities and whether the school is in the best position to remedy a policy that does not. A regulation guided by this standard comports with Title VI’s original intention of rooting out discrimination against protected minority groups as well as helps to ensure minorities’ full access to a high quality public education.

An Argument for Retroactive Application of the Eighth Amendment

In 2012, the Supreme Court issued a landmark decision substantially altering the long-held view that “death was different” from other punishments under the Eighth Amendment. In Miller v. Alabama, the majority held that defendants who were under eighteen at the time of their crimes were categorically less culpable than adult offenders, and were constitutionally entitled to individualized hearings before being sentenced to life without parole. Because the majority opinion did not discuss whether the new rule was retroactive, Miller raises a question rarely raised throughout our country’s judicial history: Once a punishment is found unconstitutionally cruel and unusual, may the states continue to inflict it on those whose sentences were final at the time? This Note posits the idea that our current retroactivity framework, as articulated, does not always lead courts to the correct answer when considering this question, and that an articulated presumption of retroactivity is necessary to ensure Eighth Amendment protections in the context of both capital and noncapital sentences. Part I provides an overview of retroactivity, and then discusses the opinions in Miller. Part II explores the evolution of Eighth Amendment jurisprudence, with special attention to how the retroactivity question has been answered in the affirmative through history, and then reports the current divide in the state courts and federal circuit courts regarding Miller‘s retroactive availability. Part III explains that the reason we have had presumptive retroactivity, and should continue to do so, in the Eighth Amendment context is because the state interests driving the retroactivity doctrine are diminished and ultimately irreconcilable with the guarantee against cruel and unusual punishments.

Examining the Effect of the America Invents Act on the Patent Grace Period

This Note argues that the U.S. Patent and Trademark Office’s interpretation of the new grace period under the America Invents Act (AIA), 35 U.S.C. § 102(b)(1)(B), is overly narrow and that an alternative interpretation proposing a broader reading of the grace period is more appropriate. Evidence for a broader reading includes the effect of each interpretation on the administrative burden at the Patent and Trademark Office, speed of patent disclosure, innovative activity by specific inventor groups, and inventor behavior in patent races. This analysis shows that a narrow interpretation of the grace period creates greater administrative burdens, discourages disclosure, disfavors small inventors and universities, and may make blocking firms in a patent race virtually costless. In contrast, a broad grace period is simpler to administer, accelerates disclosure, supports innovation by small inventors and universities, and provides firms with a defensive maneuver in patent races.

Factfinding in Appellate Court Review of Agency Rulemaking

Recognizing the need for a check on agencies’ discretion, Congress has assigned the task of reviewing agency rulemaking to the judiciary. Yet, by allocating much of that review directly to appellate courts, Congress has forced them to find facts. For example, when deciding challenges to a rule that an agency has promulgated, these courts must often hear for the first time plaintiffs’ evidence about factors that the agency failed to consider. When deciding challenges to an agency’s failure to act, they must weigh the plaintiffs’ proof about the consequences of the delay against the factual explanation the agency offers for its inaction. And, in any of these challenges, appellate courts may have to rule on facts related to standing. At best, because appellate courts typically lack the tools and institutional experience to conduct factfinding effectively, Congress has unduly burdened these courts and magnified the risk of inaccuracy. At worst, it has created incentives for appellate courts to defer to agencies and thereby weakened the entire institution of judicial review. The solution is simple: Congress should return these factfinding responsibilities to district courts.

Congress enacted the critical habitat provisions of the Endangered Species Act (ESA) to provide a powerful tool for promoting the recovery of endangered and threatened species of plants and animals. However, agency recalcitrance and constant litigation have mired its efficacy, resulting in a tangled mess that fails to effectuate the recovery goal of the ESA. This Note disentangles that mess through the lens of the ongoing circuit split over the proper methodology for consideration of costs during critical habitat designation. Concluding that the Services’ favored method, the baseline method, is superior in its faithfulness to the statutory language and the intent of Congress, this Note warns that the baseline method’s legality will continue to be undermined until the Services promulgate proper regulatory definitions to support its internal logic.