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What is Just Compensation?

The Supreme Court has held that “[t]he word ‘just’ in [‘just compensation’] . . . evokes ideas of ‘fairness.’” But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings.

This Article approaches the ambiguity as a problem of history. It traces the history of the “just compensation” clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word “just” imposes a procedural requirement on compensation: a jury must set compensation for it to be just.

This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice.

A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

In a line of cases culminating in United States v. Booker, the Supreme Court identified a Sixth Amendment problem with mandatory sentencing guidelines that used judge-found facts in ways that increased a defendant’s sentence. The Court’s solution for the federal system was to sever and remove the statutory provisions that made the federal Guidelines mandatory and binding on sentencing judges, thus creating a “discretionary” sentencing system.

Despite the key role judicial discretion plays in the constitutionality of our federal sentencing scheme, the Court has never defined what features are necessary for a sentencing guidelines system to be discretionary, and few academics have considered the question. This Note takes up this issue by considering what features could distinguish mandatory and discretionary sentencing systems. It proposes two models for what makes sentencing guidelines discretionary—a “bundle” model and a “default sentence” model—that most closely adhere to what the Court said about the discretion remedy around the time of Booker.

The Note then considers a number of the Court’s recent Guidelines decisions in light of the discretion issue. On their own and in aggregate, these cases enact legal rules, such as procedural requirements and appellate presumptions, that act as nudges towards within-Guidelines sentences. The Note argues that these rules risk violating Booker’s mandate that judges have discretion at sentencing and identifies grounds on which a new Booker-style challenge could be brought if these lines of cases were extended further.

Genetic Privacy After Carpenter

The recent arrest of the alleged Golden State Killer has ignited law enforcement interest in using consumer genetic databases to crack cold cases. The break in that case came when investigators compared crime scene DNA to other DNA profiles searchable in an online genetic genealogy database called GEDmatch. Yet consumer genetic services have responded to law enforcement interest in markedly different ways. Some have explicitly denounced law enforcement use and vowed to oppose it; others have welcomed law enforcement expressly; and some have cooperated quietly with law enforcement, while keeping their users in the dark. At almost the same time, the Supreme Court gave these platforms a new role in policing police access to their genetic resources. In Carpenter v. United States, the Court upended the seemingly categorical rule that one cannot have an expectation of privacy in data shared with another.

This Article examines the impact of Carpenter for law enforcement use of third-party DNA databases, as in the Golden State Killer case. In so doing, this Article makes three contributions. First, it joins a burgeoning scholarship in identifying Carpenter’s “test,” and demonstrates that genetic information is precisely the sort of data in which individuals may ordinarily maintain an expectation of privacy, even when that data is in third-party hands. Second, it considers the role of consumer genetic platforms in mediating police access to their resources, recasting third-party privacy practices in a more robust and nuanced role as measures of consent. Third, it assesses the privacy practices of genetic genealogy companies specifically, concluding that some plainly reinforce existing expectations of privacy in genetic data, while others have meandered their way closer to legally valid consent to government use—though none has done so with precision.

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