Category: Notes

Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards – Note by Brian Cook

From Volume 82, Number 1 (November 2008)
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Though largely unnoticed by the public, March 1, 2007, marked the transition from traditional analog television to digital broadcast television (“DTV”), a move some have characterized as the most significant change to the television broadcast industry since color replaced black and white. On that date, Federal Communications Commission (“FCC”) regulations went into effect mandating that all televisions sold in the United States contain a digital tuner capable of receiving DTV broadcast signals. If consumers are unaware of the change now, it will not escape their attention on February 17, 2009, when their old analog sets go dark as broadcasters comply with further FCC regulations mandating the cessation of all analog television broadcasts. Ultimately, the government intends to profit by auctioning off the additional frequency spectrum freed up by the more efficient digital use of the broadcast spectrum.

 

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Ganging Up on RICO: Narrowing Gonzalez v. Raich to Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act – Note by Noelle Formosa

From Volume 82, Number 1 (November 2008)
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Almost four years after the Supreme Court decided Gonzales v. Raich, its uncertain effect on as-applied constitutional challenges remains visible in many lower federal court decisions. Circuit courts struggle to determine when and how to apply Raich’s “broad regulatory-scheme principle,” which, when liberally construed, states that Congress may regulate any intrastate activity so long as the regulation is rationally included within a broad statutory scheme. Lower federal courts are faced with unanswered questions about the scope of the broad regulatory-scheme principle, particularly whether the principle applies to a statute that does not regulate a “fungible commodity,” and whether Raich governs when the principle’s application will extinguish the viability of as-applied challenges to criminal statutes that include explicit jurisdictional elements. The latter of these two questions provides the basis for this Note, which suggests an answer to the jurisdictional-element question in the context of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) as applied to noneconomic gang activity.

 

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The Unabomber Strikes Again: An Investigation into Whether the Victim and Witness Protection Act of 1982 Violates the First Amendment or Conflicts with the Copyright Act of 1976 – Note by Michael B. Norman

From Volume 81, Number 6 (September 2008)
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Over a decade after being arrested in a western Montana cabin, Theodore Kaczynski is once again grabbing headlines. Although he is currently in a federal maximum-security prison serving the life sentence that he received for committing the Unabomber crimes, Kaczynski is now engaged “in a legal battle with the federal government and a group of his victims over the future of [his] handwritten papers.” The government has proposed selling “sanitized versions of the materials” via an Internet auction in order to raise money for a group of his victims, and Kaczynski is fighting that plan.

At issue, largely, is the extent of the government’s power under the Victim and Witness Protection Act of 1982 (“VWPA”) and further, what the government may do with the property it seized from Kaczynski. This property includes his “handwritten . . . journals, diaries and drafts of his anti-technology manifesto . . . [which] contain blunt assessments of 16 mail bombings from 1978 to 1995 that killed 3 people and injured 28, as well as his musings on the suffering of victims and their families.” Moreover, due to its unique set of facts, Kaczynski’s case also provides an intriguing opportunity to evaluate whether the VWPA violates the First Amendment of the U.S. Constitution or conflicts with the Copyright Act of 1976 (“Copyright Act”), and to explore the fascinating interplay between these two areas of law, both of which provide protection for individuals’ free expression.

 

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Postpetition Interest on Unsecured Claims in the Case of a Solvent Debtor: Toward a More Consistent Statutory Regime – Note by Alexander F. Porter

From Volume 81, Number 6 (September 2008)
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One important rule of the Bankruptcy Code is that a creditor generally is not entitled to receive interest on a claim that accrues after the date when the bankruptcy petition is filed. As with most general rules, however, there are several exceptions to this ban on postpetition interest, one of which is that postpetition interest may be allowed in certain cases when the debtor is solvent. This exception is expressly codified in § 726(a)(5) of the Code, which evinces a policy in favor of requiring debtors to pay postpetition interest on creditors’ claims when the debtor can afford to do so.

 

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Cyber Crime 2.0: An Argument to Update the United States Criminal Code to Reflect the Changing Nature of Cyber Crime – Note by Charlotte Decker

From Volume 81, Number 5 (July 2008)
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In 1945, two engineers at the University of Pennsylvania invented the first general-purpose electronic computing device—the Electronic Numerical Integrator and Computer (“ENIAC”). The ENIAC was capable of 5000 simple calculations a second, yet it took up the space of an entire room, “weighed 30 tons, and contained over 18,000 vacuum tubes, 70,000 resistors, and almost 5 million hand-soldered joints.” This machine cost over $1 million dollars, equivalent to roughly $9 million today. Over the next thirty years integrated circuits shrunk, yielding microprocessors able to perform millions and billions of calculations per second with new storage media able to hold megabits and gigabits of data. As a result, computers became smaller, more advanced, and dramatically less expensive. Still, prior to the late-1980s, these and other computers were “solely the tool[s] of a few highly trained technocrats.” In the mid-1980s, only 8.2 percent of American households contained computers. American public businesses, universities, and research organizations used only 56,000 large “general purpose” computers and 213,000 smaller “business computers”; private businesses used another 570,000 “mini-computers” and 2.4 million desktop computers; and the federal government employed between 250,000 and 500,000 computers.

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Law in an Elevator: When Leveling Down Remedies Let Equality Off in the Basement – Note by Jean Marie Doherty

From Volume 81, Number 5 (July 2008)
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When fifteen-year-old Elisa Cazares was not nominated for membership to her high school’s chapter of the National Honor Society, she and her teachers were surprised. As the “brightest student” her math teacher had “seen come through” Tohono O’Odham High School, Cazares was one of four members of the student government, had been on the honor roll for every report period, and was active in a number of student activities. Arguing that the selection committee declined to nominate her because she was pregnant, unwed, and not living with the father of her future child, Cazares claimed that her equal protection rights had been violated and brought suit in federal district court. In holding that Cazares’s exclusion constituted a violation of her equal protection rights, the district court mandated that “no student . . . [could] be inducted into the National Honor Society unless and until Elisa Cazares [was] among them.” To achieve compliance with the district court’s instructions, Tohono O’Odham canceled the induction ceremony, remedying the violation by denying both Cazares and the students the selection committee had already nominated access to the Society.

 

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Protecting Privacy Expectations and Personal Documents in SEC Investigations – Note by Abraham Tabaie

From Volume 81, Number 4 (May 2008)
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Consider the following hypothetical: the Securities and Exchange Commission (“SEC”) is investigating a corporation for stock option backdating by the corporation’s officers and directors, and possible criminal charges are looming. The implicated company fires an executive, and seals her office. All of the executive’s documents inside the office, including her personal documents, are subpoenaed by the SEC. In a modern world, both work related documents and purely personal documents are often left at the office. These documents could include, but are not limited to, personal bank statements, other personal financial documents, letters, a diary, and even medical information. While personal files could have nothing to do with the corporation, the corporation must turn over these documents to the SEC pursuant to a valid subpoena. The SEC later can provide these documents to the U.S. Attorney’s office in a parallel criminal investigation of securities fraud. In a traditional criminal case, the government would need a search warrant and probable cause to enter someone’s home or office and take personal documents from the individual. Through the SEC subpoena, however, the documents may be subpoenaed for mere “official curiosity” and then handed over to the U.S. Attorney’s office, as long as the parallel proceedings were not carried out in bad faith.

 

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Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education – Note by Donald A. Thompson

From Volume 81, Number 4 (May 2008)
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The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.

 

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