Article

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.

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.

Appointments Without Law

Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by the Clause (“Ambassadors,” “other public Ministers and Consuls,” and “Judges of the supreme Court”) and the officers referred to only as a residual category (“all other officers of the United States”). The basic claim is that enumerated offices need not be “established by Law”—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.

Although the “enumerated-residual distinction” has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President’s authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.  

This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution’s text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution’s ratification. But even if one rejects the strongest version of this argument, the Article’s core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.

©Virginia Law Review Association. All rights reserved.