Notes

The Insular Cases have, since 1901, granted the political branches significant flexibility in governing U.S. territories like American Samoa and Puerto Rico—flexibility enough, indeed, to ignore certain constitutional provisions that are not “fundamental” or which would be “impractical” to enforce in the territories. Long maligned as judicial ratification of empire, predicated on racist assumptions about territorial peoples and a constitutional theory alien to the United States, the Insular Cases had a curious renaissance in the late twentieth-century. As local territorial governments began to exercise greater self-rule, newly-enacted local laws in the territories began to pose constitutional issues, but courts generally acquiesced in these constitutional deviations. This Note argues that this accommodationist turn in Insular doctrine complicates the legacy of the cases—that their use to enable local peoples to govern themselves as they desire, and to protect their cultures, means the Insular doctrine is not merely defensible but perhaps even necessary, and finds support in arguments from political theory. Moreover, the Note contends, such constitutional accommodation has a long pedigree in the American constitutional system.

Under section 704 of the Administrative Procedure Act, courts can only review agency actions when they are “final.” In Bennett v. Spear, the Supreme Court put forth a seemingly simple two-part test for assessing final agency action. However, the second prong of that test—which requires agency actions to “create rights or obligations from which legal consequences flow” to be final—poses several problems. Most importantly, because it overlaps with the legal tests for whether a rule is a legislative rule or a nonbinding guidance document, it seems to effectively bar courts from reviewing nonlegislative rules before agencies have taken enforcement action. Because of this overlap, the Bennett test conflicts with—and thus undercuts—other principles of administrative law that seem to promote a pragmatic, flexible approach for courts to use in determining whether, when, and how to review agency rules. The result is a confusing standard of review that can prevent plaintiffs from challenging agency rules in court, especially when those plaintiffs are beneficiaries of regulation who will never be subject to enforcement action down the road. At the same time, however, courts should not be able to review every single agency rule before it is enforced. Agencies should be able to experiment, but should not be permitted to indefinitely shield potentially dangerous deregulatory programs from judicial review, as Bennett seems to allow. Accordingly, this Note argues that to be faithful to the Court’s commitment to “pragmatic” interpretation of the finality requirement, lower courts should follow a two-pronged approach to analyzing questions of final agency action. When courts can compel an agency to finalize its allegedly temporary action because of “unreasonable delay,” they should interpret Bennett’s second prong formally, holding that only truly legally binding action can be final. If this bars some plaintiffs from suing now, they will be able to challenge the rule later when the agency’s process is finished. But when courts cannot force agencies to finalize their rules, they should construe Bennett functionally, conceptualizing the agency’s allegedly temporary action under a “practically binding” standard. Under this framework, if the agency’s “temporary” action in practice consistently follows certain criteria, it should be viewed as binding and final under Bennett, and thus subject to judicial review, regardless of what the agency or its employees are legally required to do. This two-pronged approach would help to strike the right balance between the private party and the agency in a practical manner that depends upon the context.

Compliance and subversion are not mutually exclusive. Police officers can comply with Miranda requirements while subverting their purpose through creative workarounds; individuals facing deportation can comply with immigration procedures while clogging them up with frivolous claims; anti-death penalty activists can avoid violation of Eighth Amendment doctrine while undermining the executions it approves. These and other deliberate actions to obstruct judicial protections of rights and powers fall in a gray area between compliance and noncompliance. This Note articulates a transsubstantive legal theory underlying these actions, referred to as “compliant subversion”: attempts to make judicial protections of rights or powers unworkable while maintaining facial compliance with the law. After defining this concept and exploring its manifestations across different areas of law, the Note examines how courts constrain compliant subversion with reference to the subversive intent underlying it. Finally, the Note presents a normative critique of when judicial consideration of compliant subversion is inappropriate.

Legal injury without harm is a common phenomenon in the law. Historically, legal injury without harm was actionable for at least nominal damages, and sometimes other remedies. The same is true today of many “traditional” private rights, for which standing is uncontroversial. Novel statutory claims, on the other hand, routinely face justiciability challenges: Defendants assert that plaintiffs’ purely legal injuries are not injuries “in fact,” as required to establish an Article III case or controversy. “Injury in fact” emerges from the historical requirement of “special damages” to enforce public rights, adapted to a modern procedural world. The distinction between public and private rights is unstable, however, with the result that many novel statutory harms are treated as “public,” and thus subject to exacting justiciability analysis, when they could easily be treated as “private” rights for which legal injury without harm is sufficient for standing. Public and private act as rough proxies for “novel” and “traditional,” with the former subject to more judicial skepticism. Applying “injury in fact” this way is hard to defend as a constitutional necessity, but might make sense prudentially, depending on the novelty and legal source of value for the harm. Taxonomizing these aspects of “harm” suggests that, even with unfamiliar harms, judicial discretion over value lessens the need for exacting injury analysis.

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.