Volume 53, Issue 4

4 posts

Gubernatorial Impoundment: An Implied Solution for a Budgeting Challenge

Issues Volume 53, Issue 4

By Zachary Blair

In recent years, states have had to make drastic cuts to their budgets even as the economy flourished in the wake of the Great Recession. The task of balancing state budgets has always been a formidable one, but recent shifts in revenue sources and their ability to generate reliable funding have made this challenge increasingly common and difficult. Historically, states have viewed budget balancing as a fundamentally legislative obligation and prerogative, which is often delegated to the executive branch in the form of impoundment statutes because of the executive’s superior budgeting capabilities.

In several states, however, the legislature has either kept the power to balance the budget for itself or has delegated insufficient discretion to the executive, hampering the state’s ability to meet its constitutional obligation to balance the budget. Consequently, this Note presents an alternative interpretation of the power to impound. It conceives of impoundment as a shared constitutional power exercisable by either the executive or legislature that can be constrained by statute. This interpretation permits the executive to better leverage its strengths in fiscal matters to resolve budget deficits quickly and efficiently, ensuring that the state meets its constitutional obligation to balance the budget.

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An Appointment with Time: Defining the Scope of a Timely Challenge After Lucia v. SEC

Issues Volume 53, Issue 4

By Dustin G. Graber

In its Appointments Clause jurisprudence, the Supreme Court has articulated a “timely challenge” requirement for litigants contesting the appointment of Officers of the United States. Most recently, the Court recited this language in Lucia v. SEC, a case in the October 2017 term, where it granted the petitioner a new hearing before a Securities and Exchange Commission Administrative Law Judge after finding a violation of the Appointments Clause. However, the Court has yet to provide a concrete definition for the phrase.

This Note seeks to fill this gap by providing a comprehensive framework to assess the timeliness of these constitutional challenges. It begins by tracing the doctrinal evolution from its origin in Ryder v. United States to its present iteration. Coupled with Court’s discretionary approach to nonjurisdictional constitutional issues raised in the first instance on appeal, this Note argues that review by a constitutionally valid officer is necessary to extinguish the timeliness of a challenge. This reasoning draws upon the Court’s treatment of the de facto officer and de facto validity doctrines in the Appointments Clause context and tests it in the context of a hypothetical SEC proceeding.

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Living in the Blast Zone: Sexual Violence Piped onto Native Land by Extractive Industries

Issues Volume 53, Issue 4

By Lily Grisafi

Native American women around the country, and particularly those living near extractive industries, face an epidemic of sexual violence. The high rates of violence against Native women are due in large part to the lack of liability for those most responsible. Flaws in United States and tribal criminal justice systems create de facto jurisdictional gaps that allow perpetrators to commit crimes on tribal land with impunity. In particular, restrictions on tribal sovereignty and criminal jurisdiction, inadequate funding for tribal criminal justice systems, and federal apathy to crimes on tribal land deepen the pre-existing problem of violence against Native women.

This Note elucidates the realities and causes of violence against Native women, in order to find legal solutions for holding perpetrators and extractive companies liable. Part II discusses the facts and legal backdrop of this epidemic of violence. Part III then examines how laws inhibiting tribal sovereignty combined with federal prosecutorial inaction are responsible for this epidemic. Part IV puts forth available legal solutions for holding perpetrators and extractive companies accountable through United States and tribal criminal justice systems. To hold perpetrators accountable, tribes should be legally permitted to exercise enhanced criminal jurisdiction over non-native defendants, and the Federal government should provide tribes with the inter-agency support and federal funding necessary to carry out this enhanced jurisdiction effectively. For their part, extractive corporations should be held responsible through federal regulation and civil action. Federal agencies should regulate extractive companies in the context of and in correlation with their businesses’ impacts on neighboring Native women’s safety. When, despite proper federal regulation, these corporations engage in negligent hiring practices that lead to increased violence against Native women, the corporations should be held civilly liable for public nuisance in state and tribal court.

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Characterizing the Harms of Compromised Genetic Information for Article III Standing in Data Breach Litigation

Issues Volume 53, Issue 4

By Terry Wong

As direct-to-consumer genetic testing has proliferated, individuals face a heightened risk of having their genetic information exposed in data breaches. In response to these breaches, individuals that turn to the federal courts as an avenue for recovery must overcome the legal barriers that have often frustrated victims in traditional data breach contexts. In particular, these plaintiffs have struggled due to the circuit split among the U.S. courts of appeals over whether certain harms are sufficient to confer Article III standing in data breach cases. While federal courts continue to debate over the sufficiency of traditional data breach harms, compromises of genetic information raise exceptional considerations and harms that should favor the conferral of Article III standing.

This Note analyzes that the implications of data breaches involving compromised genetic information that justify an expansive approach to the conferral of Article III standing. Part II of this Note surveys the growing prevalence of data breaches and discusses the common legal obstacles that victims face in seeking recovery against breached entities. Part III outlines the relevant Article III standing requirements and reviews the circuit split among the U.S. courts of appeals by focusing on the primary hurdle for data breach victims — establishing injury in fact. Part IV raises and analyzes the exceptional features and implications of data breaches involving genetic information. In doing so, this Part characterizes the potential harms resulting from genetic information compromise and discusses how they should impact the Article III standing analysis to satisfy the injury-in-fact requirement.

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