Comment

Partisan gerrymandering distorts voter preferences and undermines electoral competitiveness. Single-state redistricting reform has stalled because legislators and voters alike face diminishing incentives to reallocate power to their state’s minority party as partisan polarization increases. In the congressional redistricting context, however, interstate compacts could replace those incentives to compete with incentives to cooperate. The Constitution’s Compact Clause permits states to collaborate with each other but requires congressional consent. Yet the Constitution remains silent about which interstate agreements trigger this requirement, how Congress may provide consent, and how the Compact Clause interacts with the Elections Clause. This Comment explains how states could form redistricting compacts even without affirmative congressional approval.

Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Congress can be weak willed when it violates such statutes, and this weak-willed action jeopardizes the advantages of enacting such statutes in the first place. I propose that courts may apply familiar canons of statutory interpretation to hold Congress accountable to its commitments.

Under the Judicial Conduct and Disability Act of 1980, it falls to federal judges in each circuit to investigate and redress complaints about their colleagues’ behavior. A controversial provision of the Act authorizes the temporary suspension of misbehaving judges from new case assignments. Judges suspended under the Act have argued that this amounts to effectively removing them from office without impeachment, violating constitutional protections of judicial tenure and independence. This Comment develops and defends a bright-line rule for conceptualizing effective removal. When a case-suspension sanction even temporarily has the effect of disqualifying a judge who lacks assigned cases from further assignments, it unconstitutionally removes the judge from office. After crystallizing this concept, the Comment attends to non-merits-related reasons that courts are unlikely to accept this challenge to the JCDA; assesses the risk that the Act’s case-suspension provision could be abused; and proposes an amendment that would foreclose effective removal.

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white-collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope. Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have struggled to consistently determine whether alleged property interests are covered by these statutes. This has led to overturned convictions in high-profile mail and wire fraud cases. This Comment aims to aid courts conducting the traditional property interest analysis by synthesizing the Supreme Court’s property-based case law and proposing a hallmarks-of-property test.

Federal law authorizes the reinstatement of a prior removal order when a noncitizen “reenter[s] the United States without authorization after having already been removed.” The question whether a noncitizen is removable is thus definitively settled immediately upon reinstatement. But the question to where the noncitizen will be removed is less certain. This is because noncitizens subject to reinstated orders of removal retain the right to pursue “withholding-only” relief, which precludes removal to the noncitizen’s home country when extreme dangers await them there. This lag—between when removability, on one hand, and the country of removal, on the other, are determined—has exposed an ambiguity in the statute providing for judicial review of a “final order of removal,” 8 U.S.C. § 1252. Specifically, § 1252(b)(1) requires that a noncitizen file a petition for review within thirty days of the final order of removal. But when does a reinstated order of removal become final? Specifically, does finality attach when the prior removal order is reinstated (such that removability is determined) or when the administrative process for adjudicating claims for withholding-only relief has concluded (such that the country of removal is determined)? This Comment contends that the soundest construction of § 1252 deems reinstated orders of removal final when withholding-relief proceedings conclude.

This Comment seeks to resolve a dispute among district courts on how to interpret the term “ground” in 35 U.S.C. § 315(e)(2), the America Invents Act’s (AIA) estoppel provision. The question of whether a party that asserts a printed publication or patent in an inter partes review (IPR) proceeding is estopped from asserting real-world prior art, such as a device, in a later civil action under § 315(e)(2) has resulted in a district court split. Some courts have construed the estoppel provision narrowly, reasoning that because a physical object like a device is not something that could have been raised during IPR, estoppel cannot apply. Under this interpretation, “ground” is interpreted to mean a piece of evidence. Because physical products are not the same type of evidence offered during IPR, litigants are not estopped from using them in later civil actions. On the other side of this, courts have determined that estoppel can apply, but does not in situations where the physical object being raised is either “superior and separate” or presents a “substantive difference” to the paper prior art raised in IPR. Here, “ground” is interpreted to mean argument, such that estoppel applies when the device offers no arguments other than those already put forth during IPR—in other words, when litigation would be duplicative. The resolution to this question carries significant consequences for the cost, efficiency, and institutional division of labor of the patent system. This Comment argues that the AIA’s text and purpose support adopting the substantive difference approach. This approach strikes a workable balance in focusing on the legal arguments to ensure that litigants are not unduly relitigating the same arguments already decided by the Patent Trial and Appeal Board (PTAB). The substantive difference approach also advances the AIA’s purpose in offering IPR as a cheaper, faster alternative to district court litigation. It also promotes a reasonable division of responsibilities between the PTAB and district courts. Overall, as this Comment explains, this interpretation best aligns with the patent system’s goals.

Government detention is a quid pro quo: the government may deprive persons of their physical liberty, but in exchange, it owes them a level of care. The critical question is, how much care does the Constitution require the government to provide? In a series of federal judicial decisions (collectively, the detainee medical care doctrine), courts have found that the Constitution requires different standards of care for different classes of government detainees. These courts’ standard of care for immigrant detainees is erroneous. Modern U.S. immigration detention’s descriptive resemblance to criminal confinement has prompted courts to (wrongly) find that immigrant detainees are constitutionally entitled to the same standard of medical care as pretrial criminal detainees. Yet, the constitutionally civil status of immigration detention distinguishes it from pretrial criminal detention in doctrinally salient ways such that the Constitution entitles immigrant detainees to a higher standard of medical care. This Comment charts a path to conforming the immigration detention jurisprudence within the doctrine to what the Constitution requires by answering this question of law, which was recently unsettled by the Supreme Court’s 2015 decision in Kingsley v. Hendrickson and the Fourth Circuit’s 2021 decision in Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Center Commission: What adjudicatory standard should govern immigrant detainees’ claims of constitutionally inadequate medical care? After devising a doctrinal test and applying it to immigrant detainees, this Comment concludes that the Constitution entitles them to “medical professional judgment”: medical care must not substantially depart from accepted medical standards.

Trade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution. This Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in question for certain violations of the Defend Trade Secrets Act (DTSA)—improper acquisition and threatened misappropriation. Challenging standing in these cases will ensure that federal courts remain within their constitutional mandate. Moreover, challenging standing in certain trade secret cases will help encourage employee mobility in the marketplace. While this Comment urges courts to assure themselves of Article III standing in these cases, it acknowledges that plaintiffs will have forceful responses to standing arguments made against them. A back-and-forth rally between plaintiffs and defendants will help courts reach the correct results, as the adversarial process intends. At bottom, this piece challenges what some seem to take as a given: that trade secret plaintiffs who plausibly allege a violation of the DTSA have necessarily suffered an injury-in-fact.

Can an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals held in pretrial detention due to fabricated evidence may raise § 1983 Fourteenth Amendment claims for due process injuries caused by fabricated evidence. These claims would be in addition to § 1983 Fourth Amendment claims for wrongful pretrial detention. A circuit split has thus emerged regarding what § 1983 claims may be brought by plaintiffs who were placed in pretrial detention because of fabricated evidence. This Comment argues that pretrial detention that is caused by fabricated evidence implicates both the Fourth Amendment and Fourteenth Amendment. Accordingly, injured parties should be entitled to raise claims under § 1983 based on violations of either (or both) of these amendments.

Over the past decade, a growing number of Delaware corporations have adopted forum selection bylaws. These bylaws often require that all derivative claims against a company’s officers or directors be resolved in Delaware state courts. But what happens when a shareholder brings a derivative claim that Delaware courts do not have jurisdiction to adjudicate? This issue arises when Delaware forum selection bylaws are applied to derivative claims arising under § 14(a) of the Securities and Exchange Act of 1934, because the Exchange Act instructs that only federal courts may resolve such claims. In this context, Delaware corporations may seek to exploit forum selection bylaws as a jurisdictional loophole to bar shareholders from pursuing derivative Exchange Act claims in any court. In effect, the bylaws enable defendant corporations to designate a substitute referee—Delaware courts—that they already know is disqualified from adjudicating Exchange Act claims, which inevitably forfeits the game in their favor. Circuits have split on whether to enforce Delaware forum selection bylaws when they are applied to derivative § 14(a) claims. This Comment proposes an alternative approach to resolve the circuit split. The proposed approach revives the historically underutilized “unreasonableness exception” to enforceability, which the Supreme Court established in M/S Bremen v. Zapata Off-Shore Co. This Comment contends that Bremen’s unreasonableness exception must be understood as a context-specific inquiry. It should be applied liberally to forum selection clauses contained in corporate bylaws, and as applied to derivative Exchange Act claims. Under this proposed approach, Delaware forum selection bylaws are unenforceable as applied to derivative § 14(a) claims.