Student Note
Out of the 27,521 eighth graders in New York City who applied in December of 2018 to New York’s nine specialized high schools, only 4,798 were offered seats. Black and Latinx students received less than ten percent of these offers though they comprised forty-four percent of applicants. On the other hand, Asian-American and white students received a combined eighty percent of offers even though they accounted for only forty-nine percent of applicants. These statistics are neither representative of the demographic makeup of New York City’s public school system nor its general citizenry. The question that Mayor Bill de Blasio’s office now faces is how to improve the diversity of its specialized schooling system to accurately reflect the City’s demographic makeup while retaining high academic standards.
by Corey Hirsch
Student Note
In 2011, Congress passed the Leahy-Smith America Invents Act (AIA), marking a radical reform of the patent system. Among the many changes implemented by the AIA, Congress introduced inter partes review (IPR), a new administrative proceeding for adjudicating patent validity disputes. Utilized by parties seeking to invalidate issued patents, the proceeding, held by the Patent Trial and Appeals Board (PTAB), has been as popular as it has been polarizing in the patent community. IPRs have invalidated a large number of patents which has subjected the proceeding to both legislative and judicial challenges. Recently, the Supreme Court was faced with an IPR challenge with the potential of rendering the entire IPR system unconstitutional. The case, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, represents the closest a challenge has come to invalidating such an important fixture of the reformed patent system under the AIA.
by Jordan T. Owens
Article
The law of search and seizure is built on flexible standards of reasonableness, transformed by courts into bright-line rules that balance the needs of law enforcement against the degree to which a particular police practice intrudes upon individual privacy interests. The third-party doctrine is one such rule, holding that police do not need a Fourth Amendment warrant to access information that an individual has voluntarily disclosed or conveyed to a third party, such as bank records or call histories. But the third-party doctrine is quite literally the product of another era—before ubiquitous networked computing, digital data, electronic communications, mobile technologies, and the commodification of information. Today, the digital devices that facilitate our daily participation in modern society are connected through automated infrastructures that are designed to generate vast quantities of data, nearly all of which are captured, utilized, and stored by third-party service providers. Under a plain reading of the third-party doctrine, however, the substantial majority of that data receives no Fourth Amendment protection—no matter how sensitive or revealing the information.
by Brian Holland
Article
The question of judicial review of a federal agency’s response to a third-party subpoena is highly litigated, and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court’s holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard. This Article establishes that the circuit courts’ approaches to judicial review of an agency’s noncompliance with a subpoena are largely divided over the academic question of sovereign immunity. For the Fourth and Eleventh Circuits, only the Administrative Procedure Act (APA) provides the necessary waiver of sovereign immunity that allows a court to review agency action; accordingly, review of an agency’s failure to comply with a subpoena is analyzed under the APA’s “arbitrary and capricious” standard. For the Ninth and D.C. Circuits, the federal courts have broad, implicit power over discovery, and Federal Rule of Civil Procedure 45 is applied as it would be in all other cases. This Article seeks to reconcile these competing lines of authority by proposing that the APA’s waiver of sovereign immunity still applies when an agency runs afoul of discovery standards contained in Federal Rule 45.This Article attempts to reunite the circuits because district court case law shows that confusion over the appropriate standard is a “distinction without a difference.” For lower courts and litigants attempting to navigate the circuit split, it is worth knowing that the question largely comes down to the impact third-party subpoenas have on agency time, money, and statutory mission. By framing judicial review accordingly, consistent results can be achieved despite the geographic location of the court.
by Zoe Niesel
Article
In our country, access to insurance can be a matter of life and death, as well as financial security. Despite these great stakes, the cost and quality of insurance are often influenced by social factors like sexual orientation, age, gender, and race. Such discrimination, forbidden in other settings like employment, is forgiven in insurance, even seen as fairer, on the grounds of actuarial fairness. That is, insurance classifications are lawful so long as they are based on evidence that some groups are costlier to insure, with the understanding that others shouldn’t have to offset those expenses. This Article challenges this concept of fairness in insurance using a stigma-based critique. The sociological stigma literature describes a natural and frequent social tendency to seek out differences, stereotype, and create underclasses who enjoy less social standing and experience structural and individual discrimination. Considering insurance through the lens of stigma reveals that it is no more inoculated from social context nor human nature than any other part of our lives. Of course, some people will be costlier to insure, but stigma theory suggests that we may be incapable of determining this in an unbiased way free from harmful social constructs. To guard against unfair insurance underclasses, we should ban discrimination in insurance as in other contexts.
by Valarie K. Blake
Article
Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender, and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to support them. This Article argues that hierarchies among children violate their constitutional rights, by both the infliction of harm and the failure to provide affirmative support. It documents how our policies and structures reinscribe inequality on children and proposes a constitutional obligation to the contrary. The Article takes on the challenge of articulating a general constitutional theory of children’s rights, suggesting that children’s status, circumstances, and needs are the basis for a distinctive claim of positive rights.
by Nancy E. Dowd
Article
A significant question of constitutional law has received a lot of attention lately—whether the Department of Justice (DOJ) may indict a sitting President. The Constitution’s text does not prohibit indictment of a sitting President, so the idea that he has the power to avoid indictment while in office raises an issue of implied presidential power. This Article compares the modern Supreme Court’s treatment of implied presidential power to its treatment of implied congressional power across a wide variety of subject matter areas. It takes care to define implied powers, something neglected in the literature. That definition leads to the conclusion already articulated, that presidential indictment, while usually characterized as an immunity issue, is also an implied power issue.
by David M. Driesen* & William C. Banks*
Article
Zombie contract has risen from the dead to put a stake through the heart of tort. A half century ago, leading observers of American law reflected on what they believed was the end of an era. For more than a century, from the 1830s, in what Roscoe Pound called “the formative era” of American law, up at least until the New Deal, significant swaths of the American common law’s private law doctrines were distinctively organized around contract. By the middle of the twentieth century, however, the basic structure of the common law’s contractual reasoning seemed to be under attack. “[I]t is the fate of contract,” proclaimed leading scholar Grant Gilmore in 1974, “to be swallowed up by tort.” Dean William Prosser described with equal confidence an “assault upon the citadel of privity”—the doctrine that had once supported the predominance of contract in the law of products liability; courts, Prosser said, had at last “throw[n] away the crutch” and based their rulings on tort obligations at the expense of contractual liabilities. Gilmore confidently predicted “the death of contract.” He and Prosser believed they were watching the advent of an age in which tort’s public obligations would dominate where previously the rights and duties of contract law had ruled. Leading torts scholar Greg Keating puts the point bluntly: “[t]ort has triumphed over contract and property.”
by Ryan Martins,* Shannon Price** & John Fabian Witt**
Article
The law of search and seizure is built on flexible standards of reasonableness, transformed by courts into bright-line rules that balance the needs of law enforcement against the degree to which a particular police practice intrudes upon individual privacy interests. The third-party doctrine is one such rule, holding that police do not need a Fourth Amendment warrant to access information that an individual has voluntarily disclosed or conveyed to a third party, such as bank records or call histories. But the third-party doctrine is quite literally the product of another era—before ubiquitous networked computing, digital data, electronic communications, mobile technologies, and the commodification of information. Today, the digital devices that facilitate our daily participation in modern society are connected through automated infrastructures that are designed to generate vast quantities of data, nearly all of which are captured, utilized, and stored by third-party service providers. Under a plain reading of the third-party doctrine, however, the substantial majority of that data receives no Fourth Amendment protection—no matter how sensitive or revealing the information.
by H. Brian Holland
