Anticipated Judicial Vacancies and the Power to Nominate

In July 2005, Justice Sandra Day O’Connor retired, but her retirement was expressly effective only upon the nomination and confirmation of her successor. As such, Justice O’Connor served on the Court for more than six additional months while the President nominated three different individuals to her seat and secured the confirmation of Justice Samuel A. Alito. 

This Note addresses a simple, but unaddressed question: what triggers the President’s constitutional power to nominate under the Appointments Clause? The Note argues that there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office. 

After briefly discussing the relatively recent development of the judicial retirement option, this Note turns to unique issues presented when life-tenured, Article III justices and judges retire. When an irremovable federal judge announces the intention to retire on some future date, that mere announcement does not create a sufficiently definite and irrevocable vacancy to trigger the operation of the Appointments Clause. Instead, the nomination and confirmation of successors upon anticipated judicial vacancies generate tension with the intended operation of the appointments process as well as underlying constitutional norms of judicial independence. Triggering the appointments process on a justice or judge’s intention to retire in the future may allow an “incumbent’s veto” over nominated successors, skew the advice and consent role of the Senate, delegate a removal-like power to the political branches, and establish a kind of “holdover judge” where vacancies would otherwise allow for the operation of the Recess Appointments Clause. 

This Note concludes that due to the considerable constitutional difficulties that are presented, the Executive should not assume the power to nominate is constitutionally triggered by anticipated judicial vacancies.

Entrapment, Punishment, and the Sadistic State

The entrapment defense is a uniquely American institution, adopted in all American jurisdictions, and almost nowhere else. But while case law and scholarly literature dwell at length on entrapment’s what (what constitutes entrapment; the legal test to be applied), and sometimes on its who (who should rule on entrapment, judge or jury; who qualifies as a state actor), they have comparatively neglected its why—the underlying justification for a defense that, on further examination, seems to violate some of the most basic principles of criminal law jurisprudence. Why should someone who commits a crime, with a criminal state of mind, be found not guilty because the one who tempted him to commit the crime, an otherwise irrelevant fact, was—entirely unbeknownst to him—a police agent? 

This Note first shows the insufficiency of existing justifications of the entrapment defense, then provides a more comprehensive explanation for the doctrine. This explanation reveals entrapment to be not a procedural “technicality” protecting a value extrinsic to the underlying prohibition, but rather a substantive defense whose roots run right to the criminal law’s heart: our reasons for punishment. A “punishment-centered” view reveals entrapment to be a manifestation of a totalitarian “sadistic state,” which treats the infliction of punishment not as a means of giving the guilty their just deserts, but as an end in itself, and shows the entrapment defense to be not only a limit on police investigatory technique, but an assertion of individual liberty against the state’s ability to punish.

Authorized Generics: A Prescription for Hatch-Waxman Reform

Authorized generics present the latest controversy in the perennial battle between pioneer and generic drug manufacturers. Under these arrangements, a pioneer firm will “authorize” a generic version of its brand-name drug to enter the market during another generic competitor’s 180-day exclusivity period. This practice has generated intense debate within the pharmaceutical industry regarding its potential impact on Paragraph IV patent challenges, in addition to the proper operation and intent of the Hatch-Waxman Act. Because of the immense economic and public health consequences at stake, and previous patterns of Hatch-Waxman abuse, the Federal Trade Commission has recently launched an investigation of authorized generics.

This Note explores the qualitative nature of pharmaceutical competition, specifically focusing on the interaction between pharmaceutical supply chain economics and consumer behavior. From these observations, I propose a theory of competitive harm and conclude that authorized generics are an anticompetitive strategic behavior which violate the antitrust laws by deterring Paragraph IV entry. I find normative support within the Hatch-Waxman and patent law regimes to corroborate my antitrust analysis. Finally, I recommend potential solutions to the authorized generics controversy, including Hatch-Waxman legislative reform.