Notes

In the last decade, many fields within forensic science have been discredited by scientists, judges, legal commentators, and even the FBI. Many different factors have been cited as the cause of forensic science’s unreliability. Commentators have gestured toward forensic science’s unique development as an investigative tool, cited the structural incentives created when laboratories are either literally or functionally an arm of the district attorney’s office, accused prosecutors of being overzealous, and attributed the problem to criminal defense attorneys’ lack of funding, organization, or access to forensic experts.

But none of these arguments explain why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity. The project of this Note is to understand why judges, who effectively screen evidence proffered by criminal defendants and civil parties, fail to uphold their gatekeeping obligation when it comes to prosecutors’ forensic evidence, and how judges can overcome the obstacles in the path to keeping bad forensic evidence out of court.

This Note asks whether computer source code, when developed as a means to an end—as distinct from source code intended for third-party review—is covered speech under the First Amendment. I argue it is not. My argument has two parts. First, I describe case law treating First Amendment challenges to regulations of source code to demonstrate courts’ failure to address the status of purely functional source code. Second, I describe how courts should address such a question, by referencing an array of theories used to explain the scope of the First Amendment. I conclude no theory alone or in combination with others justifies the constitutional coverage of purely functional source code. I thereby undermine a key constitutional argument by technology manufacturers contesting, in the context of criminal investigations, the government-compelled creation of software to circumvent encryption technologies.

Political gerrymandering has been a feature of our republic since the early days of the United States. The majority of states in the U.S. allow state legislators to draw the district lines for legislative elections. Legislator-led redistricting is plagued with legislator conflict of interest, producing elections that are spectacularly uncompetitive and rampant with partisanship. In the process, the interests of voters are in conflict with the party and individual interests of legislators, threatening the legitimacy of our republican form of government. The results are often incumbent entrenchment in “safe seats” and overt partisan-based district manipulation. While not necessarily indicative that the will of the people is being usurped by the ambitions of legislators, one must inevitably ask, are voters choosing their legislators or are legislators choosing their voters? Until recently, the Supreme Court has taken a “hands-off” approach to remedying the negative effects of the partisan gerrymandering that occurs in states employing legislator-led redistricting. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court upheld Arizona voters’ right to transfer redistricting authority from state legislators to an independent commission of citizens via ballot initiative. This Note argues that the delegation theory applied by the Court in the Arizona Independent Redistricting Commission decision, and the authority of voters to be the supreme regulators of the political market, is supported by the Framers’ vision of political competition and accountability as articulated in The Federalist Papers.

In copyright law, the useful articles doctrine plays a significant role in defining the limits of copyright’s domain and the boundary between copyright and patent. But the implicated notion of “conceptual separability” has proved to be difficult to define, and the Supreme Court’s effort to define it in the recent case Star Athletica, L.L.C. v. Varsity Brands, Inc. is unsatisfying. In an effort to resolve this challenge, the present paper puts forth a novel test for conceptual separability, one that draws inspiration from the philosopher’s idea of conceivability. The test is the following question: “When you conceive of the relevant useful article as lacking the design element in question, is the article you imagine functionally identical to the actual article?” If the answer to this question is yes, then the design element is conceptually separable from the article’s utilitarian aspects; if not, then the element has failed the test, and it is not entitled to copyright protection. The present paper explores why this novel proposal avoids many of the pitfalls of existing tests (including the Court’s own in Star Athletica), why it best achieves the aims of the useful articles doctrine, and what questions remain once the challenge of conceptual separability has been resolved.

In response to an increase in the use of the Internet to distribute distance education courses and resultant concerns that copyright law related to distance education activities had become outdated, Congress passed the Technology Education and Copyright Harmonization Act (TEACH Act) in November, 2002. Through this enactment, Congress sought to align educators’ rights to use copyrighted materials in online courses with their rights to use such materials in traditional, classroom-based courses. In this Note, Kristine Hutchinson argues that they did not achieve this result. Rather, she suggests, the Act is fraught with requirements and vague terminology, which have caused confusion amongst educational institutions and have resulted in the failure to take advantage of the Act. In the end, despite the Act’s shortcomings, Hutchinson concludes that the TEACH Act is viable legislation, and offers suggestions to aid educational institutions in making use of the expanded rights to use copyrighted materials in online courses enabled by the TEACH Act.

The antipathy of federal and state courts toward equal protection arguments in lawsuits challenging the public funding of education have forced education activists to search for alternative doctrinal hooks as they continue to seek reform in states’ funding and management of schools. These activists have turned to state constitutions’ education clauses, which impose duties on state governments to provide an “adequate” education for all children in the state. However, the art of defining and measuring an “adequate” education has advanced little beyond its state in 1973, when Justice Thurgood Marshall found the term unhelpful. In this Note, Josh Kagan surveys various means of defining and measuring adequacy used by state courts, including the use of existing legislative or executive standards, the use of future legislative or executive standards, a variety of educational outputs (such as standardized test scores), and educational inputs (such as quality of teachers, curricula, or school buildings). Applying scholars’ theories of state constitutional interpretation and the history of state education clauses, Kagan argues that state courts should be aggressive in their use of educational inputs to define and measure educational adequacy. Unique factors of state governmental structure justify state court involvement in education policy questions that federal courts would consider inappropriate. These factors, coupled with the history of state education clauses, enable state courts to draw on a wide set of historical and current sources to define educational inputs required by state constitutions, and provide jurisprudential guidelines for this necessarily policy-laden analysis. Such an approach also encourages education activists to seek remedies other than reform to school financing systems; instead, activists can target states’ provision of particular educational inputs.

Circuit court decisions in the cases of Qutb v. Strauss and Hutchins v. District of Columbia signal a change in judicial attitude towards associational challenges to teen curfews: If a curfew contains an exception for activities protected by the First Amendment, then it will not be struck down as unconstitutional for infringing on a teenager’s right to associate. At first blush, a First Amendment exception appears sufficiently protective of a teenager’s right to associate. But as Todd Kaminsky demonstrates in this Note, the exception may in fact not go far enough. Certain activities that fall outside the scope of the exception—most notably, public discussion-are necessary antecedents for activities within the scope of the exception, such as protest. By examining sociological accounts of Freedom Summer, the Velvet Revolution, and other similar movements, he establishes the link between public discussion and protest and brings into sharp relief the negative First Amendment consequences of curtailing public discussion. In addition, he explores how a curfew, even with an exception, may make it more difficult for expressive teen organizations to recruit new members, by reducing the time available for teens to socialize and develop informal social networks. As such, Kaminsky concludes, courts should give due regard to associational challenges and scrutinize carefully teen curfews, despite the inclusion of First Amendment exceptions. Otherwise, courts may inadvertently erode teenagers’ right to associate by choking off the conditions necessary for the vigorous exercise of that right.