Notes

Many biotechnology products are living organisms that are essentially “made” by a trial and error process of directing evolution in a laboratory. Decades ago, the Supreme Court in Chakrabarty settled the threshold question of patent eligibility for life forms, stating clearly that living things are patentable. Nevertheless, the fact that nature assists inventors so heavily in the process of inventing a useful new organism raises the question of whether such organisms meet patent law’s enablement requirement—that a patent application must teach a person of ordinary skill in the art how to make and use the invention without undue experimentation. This Note argues that the enablement requirement has been overlooked for patents to genetically engineered organisms, and proposes solutions for updating this requirement to properly incentivize the creation of socially beneficial living things, without allowing inventors to bar access to products of nature.

This Note analyzes the relationship between “malice aforethought,” the mens rea required to commit murder, and self-defense, a potential justification for a killing. Although both concepts are well-established in criminal law, there is a dearth of jurisprudence dealing with their intersection. Specifically, many jurisdictions, including the Second Circuit, have yet to conclusively address the issue of whether the mental state required for proving a self-defense justification is incompatible with the mens rea of malice aforethought required for committing murder under the primary federal murder statute, 18 U.S.C. § 1111. Because under federal law, self-defense is an issue of common law, rather than statutory, the existing case law on this question in federal jurisdictions is inconsistent, inconclusive, and often nonexistent. Some circuits have indicated, often in dicta, that malice is incompatible with the reasonable fear for one’s safety that is required when acting in self-defense, while other courts have found it consistent for a defendant to possess a preformulated intent to kill another person but also act (and therefore kill) in the moment due to a fear for his or her life or safety. While both positions present analytical difficulties, these problems all stem largely from the definitional ambiguity surrounding “malice aforethought” and courts’ subsequent inconsistent applications of the concept in murder trials. Therefore, this Note argues for the adoption of a clear and consistent definition of “malice aforethought” which encompasses its common law definition, requiring a depraved or evil mental state beyond mere intent to kill.

Nearly half of all employers consider applicants’ credit histories when making some hiring or promotion decisions—and they risk violating Title VII of the Civil Rights Act of 1964 (Title VII) when they do so. Employer credit checks have a potentially disparate impact on minorities and an attenuated relationship to asserted concerns about job performance and employee theft. The case law analyzing disparate impact challenges to credit check policies, meanwhile, is sparse, leaving employers with little direction as they shape their practices. This Note suggests that the Equal Employment Opportunity Commission (EEOC) issue detailed guidance on employers’ use of credit checks and proposes a novel framework drawn from agency guidance on the use of criminal records, which adopts the Eighth Circuit’s Green factors. Specifically, the EEOC ought to recommend that employers take into account the source or type of debt, the time between the “negative behavior” and the employment decision, and the nature of the job; the guidelines should also advocate for individualized assessments. Guidance along these lines would clarify what constitutes lawful credit check usage and benefit the job-seekers that Congress intended to protect with Title VII’s enactment.

The prevailing medical consensus is that drug addiction and alcoholism are disabilities. Before 1996, SSI and SSDI, the nation’s major disability benefits programs, recognized that consensus and provided benefits to people struggling with addiction. Then, the “DAA materiality” provision of Congress’s 1996 welfare reform legislation revoked eligibility not only from people struggling with addiction, but also from people with addiction and another severe disability whose addiction contributes to the severity of the other disability. For this latter group of “dual-diagnosis” claimants, it is often impossible to determine which of a claimant’s impairments would remain absent substance abuse. In such cases, the evidence is in equipoise, and whichever party bears the burden of proof of DAA materiality will lose. Despite its importance to many disability benefits claimants, the issue of who bears the burden of proof remains unresolved, with the Social Security Administration placing the burden on the government and a split among the federal appeals courts that have taken up the issue. This Note argues that the burden of proof of DAA materiality should fall on the government. It shows that the DAA materiality provision creates an exception to the definition of disability in the Social Security Act that functions like an affirmative defense for the government to deny benefits to otherwise eligible claimants. It then contrasts the many obstacles facing dual-diagnosis claimants with the government’s superior resources and expertise to offer proof on the complex DAA materiality issue.

On his first day in office, President Obama called for the closure of the military prison at Guantánamo Bay, Cuba. Near the end of Obama’s tenure, the prison remains open. This Note suggests a previously undiscussed path for the President to transfer most detainees from Guantánamo, despite congressional opposition, using a robust and exclusive executive tool: the pardon power. By granting conditional pardons to eligible Guantánamo detainees, the President could unilaterally move many to the mainland United States for continued, if limited, detention, and transfer others for repatriation elsewhere. In addressing the Guantánamo problem, this Note argues that pardons have been used and should be viewed as a crucial complement to presidential war powers. The Note concludes that granting clemency for Guantánamo detainees is not only legally defensible, but also consistent with constitutional structure, original understanding, and historical practice since the Founding.

Jurisdictions have been liberalizing rules surrounding third-party litigation funding or the buying and selling of legal claims since the early twentieth century. Scholars have generally supported liberalization, seeing it as a way to expand access to courts and allow for the more efficient allocation of risk. Opponents have warned about a surge in frivolous litigation and strategic behavior by funders. But both sides have ignored how interrelated the rules governing third-party investment in litigation and the alienability of legal claims are, and how they interact to affect a legal claims market. The focus on reform should be to adjust these rules to create the optimal legal claims market. Instead, reform has increasingly focused on liberalizing third-party investment while keeping rules around alienability the same, or even barring investors from exercising control over the suit. This risks creating new problems without effectively solving many of the issues reform is meant to solve. This incremental approach comes with real costs, and may actually prevent a well-developed legal claims market from developing.

The Obama Administration has acted decisively to cure a long-standing wound the United States has inherited from the Cold War by seeking to normalize relations with Cuba. However, prospects for full normalization are currently impeded by over four billion dollars in judgments levied against Cuba by politically motivated state courts in Florida under the state sponsor of terrorism (SST) exception to the Foreign Sovereign Immunities Act. These judgments create a serious obstacle and impede Cuba and its companies from transferring any assets into the United States. Because these judgments purport to punish Cuba for acts occurring during and immediately after the Cuban Revolution and Cuba was only placed on the SST list in 1982 for supporting insurgent movements elsewhere in Latin America, the courts manifestly exceeded their subject matter jurisdiction in issuing them. Nevertheless, several federal courts have afforded them full faith and credit and begun to enforce them against Cuba’s existing assets in the United States.

This Note therefore argues that the President can and should exercise his power to espouse and settle international claims to resolve these judgments pursuant to a sole executive agreement, whether or not he is able to secure congressional acquiescence for his actions. In doing so, the President can lean on a long record of historical practice affirmed repeatedly by the Supreme Court and buttressed by recent settlements of terrorism claims with Iraq and Libya. Finally, the U.S. government should be able to avoid a takings claim by SST judgment holders after the judgments’ resolution by funneling their claims into the Foreign Claims Settlement Commission and providing for some fractional compensation.

If piracy has been the bane of the music industry, and live performances are a financial buoy, what happens when live performances are ported to a virtual medium that all of a sudden may be subject to piracy again? This Note examines the various intellectual property frameworks through which one can look at the protectable elements of a live show or concert and what happens to the protectability of those elements once the show is ported to virtual reality. Given that technology to date has had a much larger impact on recorded music than on live performances, the introduction of virtual reality technology has serious disruptive potential. This Note argues that one can use existing intellectual property law to weave a complex web of protected elements around less traditional targets of IP like stage, set, and lighting design, background visuals, live performers, and props. This web of intellectual property protection will encourage strong contracting and yield more avenues for resisting piracy in the virtual reality world.

Consumer products increasingly record the content of user communications without regard to whether the recorded individual is the primary user—the purchaser of the product—or the secondary user—an individual who uses the product but is not the purchaser. The distinction between primary and secondary users proves significant when considering the enforceability of the product’s privacy policy, which purports to establish user consent to the collection of communications content but is only agreed to by the primary user, and protections available under federal and state statutes, many of which prohibit the recording of communications content without consent, and may thus benefit secondary users. This Note analyzes several privacy policies accompanying communications-capturing technologies as well as state eavesdropping laws and the Electronic Communications Privacy Act to demonstrate that the current consumer privacy regime does not adequately protect secondary users of communications-capturing technologies.

In designing protections for secondary users, this Note argues against requiring companies to provide front-end protection through notice of their privacy policies. Instead, this Note proposes a framework for incentivizing communications-capturing technology producers to distinguish between primary and secondary user data use on the back end.

It is a common refrain in American education that the quality of a student’s education “should not depend on his or her zip code.” Yet American public education consistently falls short: Many schools and districts, in particular those with large populations of low-socioeconomic status (low-SES) and minority students, do not receive the funding necessary to provide their students with educational opportunities equal to those in wealthier schools. Plaintiffs in many states have sought to improve educational equity by using litigation to attack disparities in funding between districts. However, intradistrict inequity—the inequitable funding of schools within the same district—has persisted throughout the United States to the detriment of low-SES students around the country. This Note argues that these funding disparities can and should be addressed through both courts and policy changes. Students, families, and other parties harmed by intradistrict funding disparities should use state courts and state constitutions’ education clauses to extend previous interdistrict school funding victories and to force policymakers to implement more equitable intradistrict funding. Policymakers should implement school funding policies that promote comprehensive equity and take into account relevant student characteristics, including low socioeconomic status. These policies should promote comprehensive equity by providing all schools with base funding sufficient to give each student an adequate education and by distributing any funding beyond that amount equitably across schools in accordance with their students’ characteristics.