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Volume 63, Issue 1
In Memoriam: Paul R. Rice

By Wayne Brazil, Judge Eldone E. Fallon, Robert K. Goldman, Dean Claudio Grossman, Geoffrey C. Hazard, Jr., William M. Jannssen | 63 Am. U. L. Rev. 1 (2013)

The editors of the American University Law Review respectfully dedicate this issue to Professor Paul R. Rice.  Several of his friends and colleagues have published their thoughts and remembrances in this In Memoriam.  Please click here to read them.

The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space

By Marc Jonathan Blitz | 63 Am. U. L. Rev. 21 (2013)

Public video surveillance is changing the way police fight crime and terrorism. This was especially clear in the aftermath of the Boston Marathon bombing when law enforcement found images of the two suspects by analyzing surveillance images gathered by numerous public and private cameras. Such after-the-fact video surveillance was equally crucial to identifying the culpritsbehind the 2005 London subway bombing. But the rise of camera surveillance, as well as the emergence of drone-based video monitoring and
GPS-tracking methods, not only provides an important boon for law enforcement, but also raises a challenge for constitutional law: As police gain the ability to technologically monitor individuals’ public movements and activities, does the Fourth Amendment’s protection against “unreasonable searches” place any hurdles in their way? 

In the 2012 case, United States v. Jones, five justices, in two separate concurrences, signaled that it does—at least when the monitoring becomes too intense or prolonged. Their suggestion, however, raises two significant problems. First, it provides no principled basis for marking the point at which public surveillance morphs from a means by which police monitor public space into a Fourth Amendment “search.” Under the “mosaic theory” embraced by the D.C. Circuit, such surveillance becomes a search only when it captures enough data points from an individual’s public life to construct a detailed picture (or “mosaic”) of her movements and associations. But how detailed may such a picture be before it is too detailed? Do police engage in a search simply by watching someone continuously, even if they do so without drones, GPS units, or other advanced technology? Second, the concurring opinions do not explain why the Fourth Amendment, if it does cover public surveillance of this kind, does not also cover the information-collecting police do when they simply watch a pedestrian or a driver. As Justice Scalia wrote in Jones, “Th[e] Court has to date not deviated from the understanding that mere visual observation does not constitute a search.” But if police collect the same information from watching a driver as they do from tracking him with GPS technology, why would their watching not also be a search? 

Lawyers in the Shadows: The Transactional Lawyer in a World of Shadow Banking

By Steven L. Schwarcz | 63 Am. U. L. Rev. 157 (2013)

This article examines how the role of transactional lawyers should change in the new world of shadow banking. Although transactional lawyers should consider the potential systemic consequences of their client’s actions, their actions should be tempered by their primary duties to the client and by their responsibilities to the legal system more broadly. 

COMMENT: Elementary Unfairness: Federal Recidivism Statutes and the Gap in Indigent American Indian Defendants' Sixth Amendment Right to Counsel

By Thais-Lyn Trayer | 63 Am. U. L. Rev. 219 (2013)

Indigent American Indian defendants suffer from a gap in federal laws that denies them full Sixth Amendment right-to-counsel protections. Indian defendants are not automatically guaranteed representation by a lawyer in tribal court. Constitutional difficulties arise when these uncounseled convictions are later used to support prosecution of repeat offender crimes in federal court. Supporters of this practice, most recently upheld in United States v. Cavanaugh, point to the status of tribal nations as inherently
sovereign and beyond the reach of the Bill of Rights. This Comment argues that federal courts should nevertheless approach prosecution of recidivist crimes by Indian defendants as if the Sixth Amendment applies.

Duke-ing Out Pattern or Practice After Wal-Mart: The EEOC as Fist

By Angela D. Morrison | 63 Am. U. L. Rev. 87 (2013)

The Equal Employment Opportunity Commission (EEOC) has an essential role to play in bringing pattern or practice suits, and now is the time for it to assert its role. A pattern or practice claim, also called a systemic claim, is one in which an employer has regularly and purposefully discriminated against a class of employees based on their religion, race, sex, color, or national origin, such that the discrimination is the employer’s standard operating procedure. In recent years, the Supreme Court has limited private litigants’ access to the courts in ways that impact the ability of plaintiff classes to assert systemic claims of employment discrimination under Title VII of the Civil Rights Act of 1964. The culmination of the Court’s limitation on private Title VII pattern or practice suits was the 2011 case, Wal-Mart Stores, Inc. v. Dukes. Post Wal-Mart, the private pattern or practice class appears to be dead, and with it
the advantages of pattern or practice suits for litigants and the courts.

COMMENT: Take Off Your Genes and Let the Doctor Have a Look: Why the Mayo and Myriad Decisions Have Invalidated Method Claims for Genetic Diagnostic Testing

By Christopher Bergin | 63 Am. U. L. Rev. 173 (2013)

Association for Molecular Pathology v. U.S. Patent & Trade Office sent shockwaves through the legal community, when the U.S. District Court for the Southern District of New York rejected a series of patents held by Myriad Genetics, Inc. The court invalidated all of Myriad’s compositional patents for human genes and its method patents for diagnosing genetic predispositions to breast cancer. While commentators have discussed the ethical implications of allowing patent rights to human genes in great detail, the Court’s ruling on Myriad’s method claims went by comparatively unnoticed. 

NOTE: The Stored Communications Act: An Old Statute for Modern Times

By Melissa Medina | 63 Am. U. L. Rev. 267 (2013)

Google recently asserted that email “users have no ‘reasonable expectation’ of privacy.” Headlines like this fueled outrage when the advocacy group Consumer Watchdog posted Google’s motion to dismiss a class action lawsuit online. This statement has been called “a stunning admission,” but how surprising is it? In reality, Google’s statement reflects well-established law, which only fairly recently started to receive judicial criticism. Law enforcement agencies can often gain access to email information with little more than a subpoena. This ease of access may surprise many Americans who use email as their primary means of communication. The rapid and exponential growth of the Internet and technology over the past decade has made it easy to communicate with others around the world. However, these advantages have revealed a host of privacy issues. 

In the 1980s, manufacturers such as IBM and Apple began marketing more affordable computer systems, which allowed greater access to computer technology. This increased access spurred the creation of novel and now widely used methods of communication. Concerns that the law did not adequately protect the privacy of those communications prompted Congress to enact the Stored Communications Act (SCA) as part of the broader Electronic Communications Privacy Act of 1986 (EPCA). The SCA protects communications in three important ways: (1) it provides a private cause of action against anyone who intentionally “obtains, alters, or prevents authorized access” to certain stored communications; (2) it regulates when network service providers may voluntarily disclose customer communications and records; and (3) it outlines specific rules that govern when state actors may compel disclosure of stored communications from network service providers.