Current Issue

Volume 73 | Spring 2021 | Issue 3


TAKING OUR SPACE: WOMEN OF COLOR AND ANTIRACISM
IN LEGAL ACADEMIA

A COLLECTION OF ESSAYS INSPIRED BY MEERA E. DEO’S UNEQUAL PROFESSION: RACE AND GENDER IN
LEGAL ACADEMIA


Unequal Profession, Unleashed

Meera E. Deo

Taking Our Space: Women of Color and Antiracism in Legal Academia

Kimberly Mutcherson

Our Collective Work, Our Collective Strength

Renee Nicole Allen

Service, Scholarship, and Radical Citation Practice

Priya Baskaran

Lessons in Race and Racism in the Legal Academy: Notes on Pauli Murray

Michele Goodwin

Unentitled: The Power of Designation in the Legal Academy

Rachel López

Living in Two Worlds

Elizabeth Kronk Warner

STUDENT NOTES


The Beef with Slaughtering the Slaughterhouse Inspector

Regina Lazarus

This Note spotlights the attempt made by Tyson Foods, Inc. (Tyson) in 2019 to reduce the number of federal inspectors from the post-mortem inspection process in a Kansas beef slaughterhouse and explores the legality of slaughterhouse inspection privatization under the Federal Meat Inspection Act (FMIA). Responding to competition from a growing plant-based meat economy and pressure from recent judicial rulings frustrating the industry’s longstanding transparency evasion efforts through ag-gag laws, the slaughterhouse industry sought to capitalize on a political climate that favored increased delegation, decreased regulation, and relaxed enforcement by pushing for slaughterhouse privatization. Opponents of slaughterhouse inspection privatization, however, recognize that the absence of objective federal inspectors closely examining every carcass runs afoul of FMIA’s procedural and substantive objectives thus compromising the integrity of the slaughterhouse process and the wholesomeness of the slaughterhouse product.

In stark contrast to the delegation language incorporated in legislation regulating the aerospace industry, the finite breadth of FMIA’s safeguards, which extend only to appointed federal employees, reinforces the court’s disposition to reject delegation in the absence of meaningful independent review by qualified representatives over a private party’s actions. This Note explores the concerns associated with slaughterhouse delegation and concludes that the government has a statutory obligation to reject Tyson’s proposal and prevent the slaughterhouse industry from slaughtering the federal inspector’s role along with the cattle.

Claim-Limitation Estoppel—A Framework to Narrowing Claims in
Multi-Patent Litigation

Derek R. Gretkowski

Today, most technology is protected by aggregating a number of commonly controlled and closely related patents into a patent portfolio. In effect, size does matter. Holders of large-scale patent portfolios dominate the marketplace. This “super-patent” quality creates distinct economic advantages and has dictated patent litigation for decades. However, as a direct consequence of the complexity of protecting a singular process-based, problem-based, or product-based invention, the number of unwieldy cases that assert a multitude of both patents and patent claims has become commonplace.

Patent litigation is complex, expensive, and difficult to manage. There is an industry “consensus that the numbers of asserted claims, claim terms, and prior art references in patent cases are often problematically excessive.” Optimistically, neither litigant wants the trouble or expense of a lengthy and complicated multi-patent trial. Neither does the court. In a Sisyphean effort to tame an unmanageable caseload, the judge must decide how to narrow the issues to best serve the administrability interests of the parties, the court, and the jurors. But do these court mandated methods employed when narrowing claims in multi-patent litigation coincide with the constitutional safeguard against arbitrary denial of liberty and property guaranteed by procedural due process?

This Note addresses the due process concerns with claim narrowing strategies employed in multi-patent and multi-claim infringement suits. First, in Section II.A, a brief history of patent litigation sets the foundation for why patent infringement suits have become cumbersome and expensive. Next, Section II.B addresses two civil case management methods—Federal Rules of Civil Procedure, and local patent rules—and raises the question of whether these methods, which leave much discretion to the courts, preserve litigants’ due process rights. Part III discusses the Federal Circuit’s In re Katz decision, which attempted to answer this question by providing patentees with a “safety-valve” measure while ensuring judicial efficiency by winnowing patent claims. Part IV addresses applications of the Federal Circuit’s decision since In re Katz. Section IV.A provides a clear enumeration of the burden-shifting framework—which mirrors the Supreme Court’s doctrine of prosecution history estoppel—that a patentee should take to preserve the right to reassert abandoned or winnowed claims in a future trial. Section IV.B analyzes direct applications of the In re Katz decision, which raise new issues of claim preclusion. Section IV.C analyzes a district court’s discretion to limit claims before or after discovery, and an attempt to create uniformity in all claim narrowing cases through the formation of the Model Order. Finally, Section IV.D discusses one extreme approach to limiting claims—the “Showdown Procedure”—and analyzes the underlying, and newly raised, procedural due process issues. Part V concludes by encouraging district courts to adopt the Model Order, in conjunction with a rebuttable presumption similar to prosecution history estoppel discussed in Section IV.A, to address due process issues, thereby creating benefits such as uniformity in patent-narrowing procedures, decreasing forum-shopping, and lessening the burden of patent-saturated districts.

Giving the Green Light: Why the Supreme Court Should Allow the Special Needs Doctrine to Apply to Investigations of Child Abuse

Samantha Weckenman

In the United States, hundreds of thousands of children fall victim to abuse every year. An abused child’s only hope is that a caseworker quickly identifies the abuse and remedies the issue. But caseworker investigations are too often limited by the Fourth Amendment. A caseworker’s only hope to get around the barriers of the Fourth Amendment is to rely on the special needs doctrine, which serves as an exception to the Fourth Amendment warrant requirement. There is currently a circuit split regarding whether the special needs doctrine applies to investigations of child abuse. With no guidance from the Supreme Court, the lower courts are free to enact conflicting decisions that impair a caseworker’s ability to proactively investigate cases of child abuse. This note will argue that the Supreme Court should resolve this circuit split and find that the special needs doctrine applies to investigations of child abuse. Finding that the special needs doctrine applies would not only create a unified approach upon which caseworkers could rely when investigating child abuse, but it would also ensure that the Court serves as a guardian for children, fulfilling its role under parens patriae.

One Small Step, but No Giant Leap: How Carpenter v. United States Failed to Increase Cell Phone Privacy

Jennifer Nairn

Cell phone activity remains largely unprotected by the Fourth Amendment. This fact undoubtedly makes cell phone users apprehensive at the large swathes of cell phone activity such as emails, internet browsing, and social media use readily available for warrantless government intrusion. The complicated relationship between decades old doctrines and the rapid pace of technological advancements has enabled increasing cell phone privacy to elude the Supreme Court until 2018. The Supreme Court granted certiorari in United States v. Carpenter in a case that was the first of its kind: a Fourth Amendment challenge to the warrantless collection of cell site location information (“CSLI”). The country waited with bated breath hoping for a leap in cell phone privacy. What it got was a narrow opinion that is only one small piece of a large, complicated puzzle.
Part II of this Note will provide a background regarding Fourth Amendment jurisprudence prior to the Carpenter decision. Part III will discuss the Carpenter decision and its impact on obtaining CSLI. Next, Part IV contains an analysis of how lower courts are declining to apply the holding in Carpenter to other types of cell phone technology. Part V will discuss the shortcomings of the Carpenter decision, and Part VI suggests about how the opinion as it stands can be used to create better cell phone privacy.