Pursuant to the doctrine of territorial incorporation established in the Insular Cases, Puerto Rico is an “unincorporated” territory, and as such, it does not form part of the United States within the meaning of the Constitution. As a result, persons born in Puerto Rico are not “born in the United States” under the Fourteenth Amendment and are not constitutionally entitled to citizenship. Because they enjoy only statutory citizenship, Congress arguably is able to expatriate most Puerto Ricans if the island is declared independent. Moreover, the inferior citizenship status of Puerto Ricans reveals a grave inconsistency in the law of the Fourteenth Amendment that has never been addressed. In response to Dred Scott, the Fourteenth Amendment constitutionalized the common law doctrine of jus soli, which provides that all persons born on U.S. territory and not subject to the jurisdiction of another sovereign are native-born citizens, regardless of race. Pursuant to this interpretation of the Citizenship Clause, persons born in Puerto Rico have been “born in the United States” since the ratification of the Treaty of Paris. By retroactively narrowing the scope of the term “United States,” the Supreme Court took advantage of the unique geographical circumstances of the insular territories and prevented their inhabitants from obtaining equal citizenship. Thus, the doctrine of territorial incorporation reasserts Dred Scott’s race-based approach to citizenship and should be overruled.
Note
The Right to Education in Juvenile Detention Under State Constitutions
The importance of education to succeed in today’s society is well documented and recognized by courts, but is not adequately provided to the over 96,000 juveniles who are confined each year in the name of rehabilitation. This Note argues that children in juvenile detention have a right to an adequate education based on state constitutional guarantees of education. This right can be used to challenge the inadequacy of the current educational services provided in juvenile detention facilities. The argument proceeds in three parts. Part I provides background on the juvenile justice system, explains the importance of education in juvenile detention, and surveys the applicable federal statutes and corresponding litigation. Part II briefly discusses potential federal constitutional challenges based on the Equal Protection Clause and the Due Process Clause, but concludes that these challenges are unlikely to be successful. Part III argues that state constitutional guarantees of education are applicable to students in juvenile detention facilities. First, it analyzes the contours of the state rights to education as interpreted in school finance litigation. Second, it responds to the main objection that children in juvenile detention have sacrificed their right to education by arguing that (1) the purpose of confinement is rehabilitation, which is consistent with the right to education, and (2) even if the purpose of confinement is punishment, it does not follow that juveniles have sacrificed their right to education. Third, it analyzes specific challenges that could be raised by children in juvenile detention. Part IV concludes that given the acceptance of the adequacy conception of the right to education, the time is ripe to challenge the inadequacy of education currently provided in juvenile detention.
The Low Written Description Bar for Software
This Note focuses on the application of 35 U.S.C. � 112�s �written description� disclosure requirement to software. After tracing the contours of the modern written description requirement, it addresses the seemingly-inconsistent treatment of software and biotechnology inventions under � 112. The Note argues that while functional written descriptions are generally held to be insufficient for biotechnology or DNA inventions (�Gene X does Y� does not pass muster), courts will allow inventions involving software to be claimed via functional descriptions (�Program X does Y� is sufficient)�a much lower descriptive bar. The note concludes that the relative predictability of software development as well as the inherently functional nature of software description account for this differing treatment, and that biotechnology inventions will require less burdensome disclosure as the predictability of that field increases.