VOLUME 165, ISSUE 3 February 2017


Entering the White House in 2009, President Barack Obama committed to closing the military detention facility at Guantanamo Bay in Cuba. Eight years later, the facility remains open. This Article uses the puzzle of why Obama’s goal proved so recalcitrant as a case study of separation‐of‐powers constraints upon presidential power. Deploying a combination of empirical, doctrinal, and positive political science tools, it isolates the salient actors and dynamics that impeded Obama’s goal. Its core descriptive finding is that a bureaucratic–legislative alliance was pivotal in blocking the White House’s agenda. This alliance leveraged its asymmetrical access to information to generate constraints on the President. The most significant of these constraints operated through political channels; statutory prohibitions with the force of law were of distinctly secondary importance. The analysis, furthermore, sheds light on why individualized judicial review, secured through the mechanism of habeas petitions under the Constitution’s Suspension Clause, had scant effect. Contrary to standard approaches to the Constitution’s separation of powers, the case study developed here points to the value of granular, retail analysis that accounts for internally heterogeneous incentives and agendas instead of abstract theory that reifies branches as unitary and ahistorical entities.

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty‐year period reveals a dramatic shift in judges’ practices. In the first fifty years included in our study, district court judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court. District court judges regularly assessed the relevance and scope of precedents from those higher courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as dispositive. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the growth of the administrative state, and the Supreme Court’s increasing embrace of judicial hierarchy.

Many important decisions historically made by people are now made by computers. Algorithms count votes, approve loan and credit card applications, target citizens or neighborhoods for police scrutiny, select taxpayers for IRS audit, grant or deny immigration visas, and more.

The accountability mechanisms and legal standards that govern such decision processes have not kept pace with technology. The tools currently available to policymakers, legislators, and courts were developed to oversee human decisionmakers and often fail when applied to computers instead. For example, how do you judge the intent of a piece of software? Because automated decision systems can return potentially incorrect, unjustified, or unfair results, additional approaches are needed to make such systems accountable and governable. This Article reveals a new technological toolkit to verify that automated decisions comply with key standards of legal fairness.


Preclusion is a complex doctrine to apply in any given case, and patent litigation presents no exception. Ever since the Supreme Court ruled in Blonder‐Tongue Laboratories, Inc. v. University of Illinois Foundation that issue preclusion applies to prevent litigation on a patent that previously has been declared invalid in a court of competent jurisdiction, courts have applied issue preclusion summarily to end disputes over previously invalidated patents. But issue preclusion may not be an appropriate procedural tool in all such cases. In fact, analysis of a number of district court opinions demonstrates that some judges may explicitly or implicitly realize the same. This Comment both systematically analyzes the application of issue preclusion in the patent validity context from a doctrinal perspective and addresses significant practical concerns derived from the doctrinal findings. Interestingly, this analysis suggests that the Federal Circuit and most district courts are applying the law of issue preclusion incorrectly and that this practice has significant implications for litigants. Primarily, courts’ treatment of patent invalidity as a whole as a “single issue” for the purposes of issue preclusion is out of line with the application of that doctrine in other areas of civil law. Although the misapplication of issue preclusion is a moot point in most cases where a patent is adjudged invalid and that holding is maintained on appeal, it is of practical significance for simultaneous litigation over a single patent in multiple district courts. A new procedural framework is proposed to remedy the doctrinal and practical problems raised by the current application of issue preclusion in the patent validity context. Instead of entering judgment based on issue preclusion, which is inappropriate in many cases, there are substantial policy concerns favoring either applying claim preclusion, dismissing the plaintiff’s action for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or simply staying the patent litigation pending final appeal of an earlier proceeding over the same property right.

Over the last four decades, the United States has witnessed the emergence of a leviathan prison industrial complex. Eager to restore stagnating economies previously driven by coal‐mining operations, many rural communities sought to take advantage of this prison‐building boom through bids for facility construction contracts. As a result, a startling number of prisons have been built on active and former coal mines, coal ash dumps, and other environmentally hazardous locations. Long‐term confinement in facilities located in, on, and near such locations poses severe and demonstrable health risks to the inmate populations through exposure to polluted air and water twenty‐four hours a day, seven days a week, for the duration of their sentences.

This Comment examines the doctrinal promise of a lawsuit to enjoin the construction of prisons on toxic waste sites based on the Eighth Amendment, before inmates are exposed to dangerous and sometimes fatal living conditions. Specifically, it asks whether planning to build a prison in a location bearing environmental risks known to cause serious illness and death constitutes cruel and unusual punishment. Despite certain obstacles, this Comment contends that the Supreme Court’s conditions‐of‐confinement jurisprudence bears the weight of such a claim. Due in large part to the tireless efforts of prisoners’ rights organizations and activists, there is ample evidence demonstrating that inmates confined in facilities on or around toxic waste sites are developing exposure‐related illnesses at alarming rates. Accordingly, planning to build a prison in a location with identical risks raises serious concerns under the Eighth Amendment.

The import of this situation was perhaps best articulated by the Human Rights Defense Center, a prisoners’ rights organization actively engaged in putting an end to this disturbing trend: “If we can recognize the problem with forcing people to live in close proximity to toxic and hazardous environmental conditions, then why are we ignoring prisoners who are forced to live in detention facilities impacted by such conditions?” This Comment seeks not only to recognize the problem with forcing people to live in such conditions, but also to engage with a potential, albeit imperfect, solution.

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