Throwing Dirt on Doctor Frankenstein’s Grave: Access to Experimental Treatments at the End of Life

Michael J. Malinowski

Volume 65, Issue 3, 615-660

U.S. federal research funding triggers regulations to protect human subjects known as
the Common Rule, a collaborative government effort that spans seventeen federal
agencies. The Department of Health and Human Services has been in the process of
comprehensively reevaluating the Common Rule, which designates specific groups as
“vulnerable populations”—pregnant women, fetuses, children, prisoners, and those
with serious cognitive challenges—and imposes heightened protections of them. Given
the vulnerabilities of those who confront end-of-life decisionmaking, should the
regulatory standard be raised to more effectively protect the terminally ill from
additional suffering and the loss of quality time with family and friends? Alternatively,
should the regulations be relaxed to promote access to experimental treatment
alternatives? What importance should be placed on the overall advancement of
biopharmaceutical research and development in addressing these human health issues?
This Article proposes modifying the Common Rule to enhance human subject
protection of the terminally ill, which the U.S. standard of care generally recognizes as
a diagnosis of life expectancy of six months or less.

Full Article

Empirically Derived Compelling State Interests in Affirmative Action Jurisprudence

Meera E. Deo

Volume 65, Issue 3, 661-712

Educational diversity has long been the only compelling state interest that satisfies strict
scrutiny in affirmative action challenges absent prior institutional discrimination.
However, as educational diversity may be losing favor, it is time to consider viable
alternatives. This Article provides empirical support for the benefits of educational
diversity and proposes three additional compelling state interests for courts to consider.
Support for these compelling state interests comes directly from detailed quantitative and
qualitative analyses of data collected from an empirical study of students at the University
of Michigan Law School, relating to their preferences for diversity, perceptions of
campus climate, and professional aspirations. Study findings indicate that educational
diversity should remain a compelling state interest, and that courts should also consider
the importance of (1) avoiding racial isolation, (2) promoting service to underserved
communities, and (3) facilitating diversity in American leadership.

Full Article

The Forgotten Right to Be Secure

Luke M. Milligan

Volume 65, Issue 3, 713-760

Surveillance methods in the United States operate under the general principle that “use
precedes regulation.” While the general principle of “use precedes regulation” is widely
understood, its societal costs have yet to be fully realized. In the period between “initial
use” and “regulation,” government actors can utilize harmful investigative techniques
with relative impunity. Assuming a given technique is ultimately subjected to regulation,
its preregulation uses are practically exempted from any such regulation due to qualified
immunity (for the actor and municipality) and the exclusionary rule’s good faith
exception (for any resulting evidence). This expectation of impunity invites strategic
government actors to make frequent and arbitrary uses of harmful investigative
techniques during preregulation periods. Regulatory delays tend to run long (often a
decade or more) and are attributable in no small part to the stalling methods of law
enforcement (through assertions of privilege, deceptive funding requests, and strategic
sequencing of criminal investigation). While the societal costs of regulatory delay are
high, rising, and difficult to control, the conventional efforts to shorten regulatory delays
(through expedited legislation and broader rules of Article III standing) have proved
ineffective.

This Article introduces an alternative method to control the costs of regulatory delay:
locating rights to be “protected” and “free from fear” in the “to be secure” text of the
Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to
safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the
“to be secure” text, however, suggests that the Amendment can be read more broadly: to
guarantee a right to be “protected” against unreasonable searches and seizures, and
possibly a right to be “free from fear” against such government action. Support for these
broad readings of “to be secure” is found in the original meaning of “secure,” the
Amendment’s structure, and founding-era discourse regarding searches and seizures. The
rights to be “protected” and “free from fear” can be adequately safeguarded by a
judicially-created rule against government “adoption” of an investigative method that
constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth
Amendment rule against “adoption” is earlier standing to challenge the constitutionality
of concealed investigative techniques. Earlier access to courts invites earlier judicial
regulation, which, in turn, helps curb the rising costs of regulatory delay.

Full Article

Independent Yet Captured: Compensation Committee Independence After Dodd-Frank

Bernice Grant

Volume 65, Issue 3, 761-810

In response to the financial crisis of 2008 to 2009, the Dodd-Frank Wall Street Reform
and Consumer Protection Act of 2010 includes several far-reaching executive
compensation reforms. Because most scholars have focused on the so-called “say-onpay”
provision, they have not sufficiently analyzed another Dodd-Frank reform that
requires public companies to have compensation committees composed entirely of
independent directors. This Article fills that void. Although it is sensible to make
compensation committee members independent of management, the reform does not go
far enough to achieve its goal. The independence requirement is not sufficient to prevent
directors from being captured by management because it does not take into account
organizational behavior literature regarding group dynamics. Ostensibly independent
directors might still be subject to organizational behavior factors—such as norms of
reciprocity, groupthink, polarization, social cascades, and herding—that could lead them
to approve excessive compensation packages.

This Article thus proposes two additional reforms to augment the independence of
compensation committee members: (1) mandatory continuing professional education
regarding compensation issues and (2) a rotation system for compensation committee
membership. Directors will be less susceptible to the organizational behavior factors
noted above if they are equipped with knowledge about complex compensation issues
and tasked with approving compensation for only a limited period of time. These
recommendations draw on similar requirements under the Sarbanes-Oxley Act of 2002,
which mandate that (1) all members of the audit committee be financially literate, (2) at
least one audit committee member have financial expertise, and (3) the lead and
concurring partners of a company’s auditing firm rotate off the client engagement after
five years.

Full Article

Language Disenfranchisement in Juries: A Call for Constitutional Remediation

Jasmine B. Gonzales Rose

Volume 65, Issue 3, 811-864

Approximately thirteen million U.S. citizens, mostly Latinos and other people of color,
are denied the right to serve on juries due to English language requirements and despite
the possibility (and centuries-old tradition) of juror language accommodation. This
exclusion results in the underrepresentation of racial minorities on juries and has a
detrimental impact on criminal defendants, the perceived legitimacy of the justice system,
and citizen participation in democracy. Yet, it has been virtually ignored. This Article
examines the constitutionality of juror language requirements, focusing primarily on
equal protection and the fair cross section requirement of the Sixth Amendment. Finding
the existing juridical framework to be wanting, this Article introduces Critical
Originalism—a melding of antisubordination deconstruction principles of Critical Race
Theory with the interpretive methodology of Originalism Theory—as a new method of
ascertaining and capturing the discriminatory intent behind a statute or procedural rule.

Full Article

Note – Rape-Related Pregnancies: The Need to Create Stronger Protections for the Victim-Mother and Child

Margot E.H. Stevens

Volume 65, Issue 3, 865-898

About one in six women in the United States will be a victim of rape. For many of these
women, the rape does not end there—this crime against their body will result in an
unplanned pregnancy. In recent years, rape awareness has increased both in the
government and among the public: a new federal definition of rape encompasses a
broader spectrum of victims and pregnancy resulting from rape was splashed across
national headlines. But this is not enough. Most states lack sufficient legal protections for
a pregnant rape victim: criminal prosecutions and convictions for rape are rare, and
many states lack an efficient means through which a victim could terminate her rapist’s
parental rights over the child. This Note illuminates this legislative omissions by
discussing the current statutory schemes in effect and illustrates how judicial applications
of these statutes leave many victims and their children without sufficient legal processes.
To resolve this inadequacy, this Note suggests changes to the parental rights termination
statutes, particularly concerning pregnancies resulting from rape, to create a more
predictable outcome and protect the choices a rape victim must make.

Full Article

Note – Alito’s Way: Application of Justice Alito’s Concurring Opinion in United States v. Jones to Cell Phone Location Data

Ryan Birss

Volume 65, Issue 3, 899-928

On January 23, 2012, the Supreme Court issued a landmark decision in United States v.
Jones, ruling unanimously that the government’s installation of a GPS device on Antoine
Jones’s vehicle and the use of that device to monitor the vehicle’s movements constituted a
“search” and violated the Fourth Amendment. However, the majority opinion focused
solely on the physical trespass of placing a device on a suspect’s car.

Due to advancements in technology such as cell phone location data, physical intrusion is
unnecessary for government officials to track an individual. The limitations of the
opinion were immediately apparent in cases like United States v. Skinner, as government
agents circumvented the holding in Jones by merely avoiding physical trespass.

This Note argues that by focusing on Justice Alito’s concurrence in Jones and his three
prongs of analysis (Fourth Amendment jurisprudence, the length of tracking, and the
type of offense) and analyzing cell phone location data as something a person has a
reasonable expectation of privacy in, courts can protect individuals from unchecked
government intrusion.

This Note recaps the three opinions in Jones, summarizes the current technology and the
procedures used by government agencies to access cell phone location data, and uses the
facts of Skinner to illustrate how the surveillance process works. This Note then discusses
Justice Alito’s concurrence in detail and proposes several modifications to his analysis in
order to clarify when the warrantless collection of cell phone data should be deemed
constitutional.

Full Article

Juvenile Pariahs

Amy E. Halbrook

Volume 65, Issue 1, 1-56

Under federal and some state laws, juveniles who have been adjudicated delinquent for sex offenses can be required to register on sex offender registries for extended periods or life. In some jurisdictions, lifetime sex offender registration, community notification, and other sex offender restrictions are mandatory.This Article explores whether mandatory lifetime sex offender registration, community notification and other sex offender restrictions violate the Eighth Amendment’s guarantee against cruel and unusual punishment as applied to juveniles. Citing Roper v. Simmons and Graham v. Florida, the United States Supreme Court recently held in Miller v. Alabama that assigning mandatory life-without-parole prison sentences to juveniles violates the Eighth Amendment because a judge must be allowed to consider mitigating circumstances—including a juvenile’s lack of maturity, vulnerability to negative influences, and capacity for change—before imposing a lifetime penalty. With Miller, and before that Graham, the Court extended the definition of the “most severe” punishments to include permanent non-capital punishments applied to juveniles. This reasoning should be applied to mandatory lifetime sex offender registration and related restrictions as applied to juveniles because they are similarly punitive and permanent penalties.

Full Article

Captive Markets

Leah A. Plunkett

Volume 65, Issue 1, 57-112

Modern county jails have increasingly adopted policies to bill their inmates for some or all of the costs of their room and board. Statutes authorizing counties to implement these “pay-to-stay” programs are on the books in roughly seventy percent of states, yet the financial mechanism on which these programs typically rely is not well understood. Although the pay-to-stay obligation bears some resemblance to familiar citizen-state financial transactions—such as fines and penalties, restitution, taxes, and fees—it usually belongs to a distinct model that this Article calls the “government-imposed loan.” This Article provides an overview of the landscape of pay-to-stay programs and an articulation of the imposed loan model. The Article also assesses the normative desirability of the imposed loan model, focusing primarily on pay-to-stay programs.The imposed loan structure raises concerns in two primary areas: citizen privacy and governmental services. This model requires citizen-borrowers to disclose personal financial information—some of it with a dubious substantive link to the underlying issue for which a given service was provided—to the government on a long-term basis. It also creates some disincentive for these borrowers to work, thus increasing the likelihood that they will consume governmental services in addition to the one for which the loan was imposed. On balance, it does not appear that the familiar structure of a consumer loan translates well for use in captive markets, such as jail housing or emergency services, where citizens essentially have no choice but to consume services provided by the government through its police powers.

Full Article

The Antitrust Implications of Filing “Sham” Citizen Petitions with the FDA

Matthew Avery, William Newsom, and Brian Hahn

Voluem 65, Issue 1, 113-152

The First Amendment protects the right of all citizens to petition the government. The Food and Drug Administration (the “FDA”) has provided a means by which citizens or interested entities can voice their concerns to the FDA by filing a so-called “citizen petition.” However, some brand-name pharmaceutical companies have abused this process by filing baseless petitions with the FDA in an effort to delay generic competition. Such anticompetitive activity is generally protected by the Noerr- Pennington doctrine, which grants antitrust immunity to activity that involves petitioning the government for redress. However, the immunity does not apply to “sham” petitions, the main objective of which is to cause anticompetitive harm through the process, rather than the outcome, of a petition. The citizen petition process has provided a number of examples of likely sham petitions, resulting in delayed generic entry into the market. In some cases, such delay has resulted in billions of dollars in extra profits for brand-name manufacturers submitting “sham” petitions, at the expense of consumers and generic manufacturers.This Article analyzes recent cases in which plaintiffs allege that the citizen petitions aim to delay generic entry, and suggests precautions that practitioners can take in such lawsuits. It proposes a variety of changes to FDA regulations, as well as additions to judicial doctrines, to curb the problems caused by sham petitions. It also serves as a guide to brand-name manufacturers who wish to avoid liability under the “sham” exception. These proposals may become more relevant as the rate of filing citizen petitions grows and more generic drug applications accrue in the FDA’s backlog.

Full Article