Vol. 102 Issue 1

What happens to Supreme Court case selection when the Court is deprived of its most potent case-selection tool, the circuit split? The Supreme Court has identified two factors that guide its choice of which cases to hear: a split between the highest state courts or the federal courts of appeals on a matter of federal law, or an important federal law question necessitating Supreme Court review. Because Congress has vested exclusive jurisdiction over federal claims, patents, and veterans’ appeals in the U.S. Court of Appeals for the Federal Circuit, it is virtually impossible for federal appellate courts to split on interpretation of those federal statutes. Absent circuit splits, and given the vague nature of whether a given issue poses “an important question of federal law,” how does the Supreme Court decide which Federal Circuit cases merit review? Part I of this Note describes the general criteria the Supreme Court uses in deciding which cases it should hear and the unique concerns presented by Federal Circuit cases. Part II describes the Court’s historical approach to reviewing the Federal Circuit and changes in recent years. Finally, Part III describes three factors that appear particularly important to the Court when considering which cases merit review, and which should provide those interested in the Federal Circuit’s or Supreme Court’s docket with helpful guidelines to determine which Federal Circuit cases will draw the Supreme Court’s interest.

In the coming months and years, the United States and its North Atlantic Treaty Organization (NATO) allies will discuss, and U.S. and Russian Federation negotiators may enter, the next frontier in nuclear arms control: regulating small, “tactical” nuclear weapons. This framework Article is the first squarely on the subject in the legal literature. My core arguments are that (1) to date the bilateral Washington–Moscow arms control legal regime has primarily regulated strategic (long-range) nuclear delivery vehicles (bombers, missiles, and submarines) rather than warheads; (2) contrary to common assumption, the legal regime has regulated a small number of tactical delivery vehicles (jet fighters and other short-range systems) with arguable strategic relevance, providing a regulatory precedent; (3) the nuclear tactical versus strategic distinction in Cold War policy and the legal architecture is eroding and should be abolished; and (4) now that all nuclear weapons have “strategic” (that is, major) significance, and in view of the enduring “loose nuke” threat and other risks, the arms control legal regime should be expanded to regulate and reduce what we now consider tactical nuclear arms. Nonlegal steps—confidence-building measures and parallel unilateral reductions—may pave the way, but tactical nuclear weapons ultimately ought to be regulated via the new treaty I outline.
Extension of the legal regime to regulate all tactical delivery vehicles and warheads would be revolutionary. Warheads are much smaller than nuclear delivery vehicles, which can be readily observed from space. Warheads are therefore easier to conceal or steal, and they present unique verification challenges.
Resolution of the verification problem in a new treaty will be tough. But it also presents an opportunity: creation of what I term Nuclear Information Stability (NIS) between the United States and Russia, a condition characterized by continual communication and common understanding of the number, location, and operational status of nuclear hardware. The superpowers built 100,000 nuclear warheads during the Cold War and retain thousands of warheads today to mitigate uncertainty and reduce risk of a successful surprise attack— rationales for large stockpiles that would be challenged by NIS. Ultimately, I argue, NIS could allow the United States and Russia—and other nuclear states to which the concept could be exported—to see a realistic path from Mutually Assured Destruction (MAD) to a day-to-day state of Mutually Assured Security (MAS).

Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing—that a criminal defendant is protecting the rights of all of society—these constitutional inquiries fail to protect broader privacy rights and equal protection interests implicated by the Fourth Amendment.
This Article takes an in-depth look at this fundamental flaw with an original and comprehensive analysis of Supreme Court cases and proposes a new model of the Fourth Amendment that alleviates this problem. This Article reveals that since 1990, the Supreme Court sided with government interests in approximately eight out of ten criminal procedure cases. It also discovers that parties fail to present data to courts, which leaves courts lacking appropriate information. This leads to what I refer to as “blind balancing.” Indeed, blind balancing demonstrates several dangers—specifically common-sense errors, inconsistencies between similar cases, and reliance on hypothetical threats. After identifying these problems, this Article considers a new model for the Fourth Amendment. This model envisions a major shift in Fourth Amendment balancing towards considering broader statistical data and facts to inform decisions and educate courts to consider not only the defendant before them but the rights of society implicated in every case.

The Stored Communications Act (SCA), passed by Congress in 1986 as part of the Electronic Communications Privacy Act, has proven to be a controversial piece of legislation. Although other articles have focused on the SCA’s outdated terminology, confusing language, and nonsensical provisions, this Note criticizes the SCA’s prohibition of certain disclosures by Internet service providers (ISPs) in the context of civil litigation between private parties.

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial-identification claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away from the current model, which conflates race and cultural difference, toward a functionalist model that ensures that racial diversity programs are designed to sample for employees that can teach us about the diverse ways that race is actualized and experienced. Specifically, the Essay suggests that diversity initiatives should be based on a functionalist understanding that stresses race’s use value as a source of insight into the social process of racialization. Programs structured in this fashion avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial-identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

In recent years, academics and jurists alike have debated the propriety of publishing dissents from orders denying rehearing en banc (DDRs). Proponents contend that DDRs constitute a highly useful contribution to legal discourse, while critics argue that DDR authors inappropriately act as advocates rather than jurists, interposing themselves in cases they have not been called on to decide. To date, arguments on both sides have largely lacked a solid empirical grounding to demonstrate the collective effect of DDRs on the judicial system.
In this Article, I use a dataset of every DDR from the federal courts of appeals to give a fuller context to the debate over their appropriateness, a better understanding of the costs and benefits they entail, and an enhanced picture of the extent to which ideology affects their use. I find that the party affiliation of a DDR’s author matters considerably in how the Supreme Court treats the case—Republican DDR authors are more than twice as likely to obtain Supreme Court review of a case as their Democratic counterparts, and this chasm is growing. Because cases with DDRs now make up an increasingly large portion of the Supreme Court’s oral argument docket, these differences can have an enormous practical impact. I argue that these results could contribute to the perception of a politically polarized judiciary, and that the negative consequences of such a perception are potentially profound. I then offer potential guidelines for judges to consider before publishing a DDR aimed at balancing their desire for self-expression and need to maintain judicial legitimacy.