Archive: 2014

The Shadowy Contours of Bankruptcy Resistant Investments

By: Jared A. Ellias**

 

Response to: Douglas G. Baird & Anthony J. Casey, No Exit? Withdrawal Rights and the Law of Corporate Reorganizations, 113 Colum. L. Rev. 1 (2013).

 

Baird and Casey recently argued in favor of contractual innovations that allow lenders ...READ MORE

Private Enforcement’s Pathways: Lessons from Qui Tam Litigation

By:  David Freeman Engstrom

 

How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer ...READ MORE

Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality

By:  Suzanne B. Goldberg

 

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly ...READ MORE

 

Adopting “Biology Plus” in Federal Indian Law: Adoptive Couple v. Baby Girl‘s Refashioning of ICWA’s Framework

By:  Shreya A. Fadia

 

This Note argues that the Supreme Court’s decision in Adoptive Couple v. Baby Girl creates an apparent tension in federal Indian law. The Court’s characterization of the broader aims of the Indian Child Welfare Act of 1978 and ...READ MORE

Hey, That’s Cheating! The Misuse of the Irreparable Injury Rule as a Shortcut to Preclude Unjust-Enrichment Claims

By:  Eric J. Konopka

 

In a recent case, the Eighth Circuit, following the lead of other courts interpreting Minnesota law, hinted that a plaintiff may not be able to pursue an unjust-enrichment claim if a statutory cause of action is available. ...READ MORE

 

Gender Diversity and Same-Sex Marriage

By: Ian Farrell* & Nancy Leong**

 

INTRODUCTION

 

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage ...READ MORE

The Negotiated Structural Constitution

By:  Aziz Z. Huq

 

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government.  It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action ...READ MORE

Taking Images Seriously

By:  Elizabeth G. Porter

 

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on ...READ MORE

 

The Attorney General Veto

By:  Jeremy R. Girton

 

Constitutional standing doctrine requires that a private party seeking to defend the validity of a state statute must possess a “particularized” interest in the statute’s validity. When California officials refused to defend the constitutionality of Proposition 8, ...READ MORE

The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction Over Nonmembers in Civil Cases

By:  M. Gatsby Miller

 

Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal ...READ MORE

Narrowing Precedent in the Supreme Court

By:  Richard M. Re

 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in ...READ MORE

 

McCutcheon Calls for a National Referendum on Campaign Finance (Literally)

By: Andrew Tutt*

 

In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo ...READ MORE

Forcings

By:  Lee Anne Fennell

 

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been ...READ MORE

Dictatorships for Democracy: Takeovers of Financially Failed Cities

By:  Clayton P. Gillette

 

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally ...READ MORE

 

“The Second Chance They Deserve”: Vacating Convictions of Sex Trafficking Victims

By:  Alyssa M. Barnard

 

Section 440.10(1)(i) of the New York Criminal Procedure Law allows victims of sex trafficking to vacate convictions for certain offenses they were forced to commit by their traffickers. This vacatur provision and similar laws in other states ...READ MORE

No IDEA What the Future Holds: The Retrospective Evidence Dilemma

By:  Dennis Fan

 

The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes ...READ MORE

Toward a Constitutional Review of the Poison Pill

By:  Lucian A. Bebchuk & Robert J. Jackson, Jr.

 

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the ...READ MORE

 

Not Helping: How Congressional Tinkering Harms Victims During the Post-Trial Phase of a Court-Martial

By: Zachary D Spilman*

 

INTRODUCTION

 

 

Congress made many changes to the Uniform Code of Military Justice1 (UCMJ) in the National Defense Authorization Act for Fiscal Year 2014.2 Among these are two changes to Article 60 of the UCMJ that address the participation of victims ...READ MORE

The Administrative Origins of Modern Civil Liberties Law

By:  Jeremy K. Kessler

 

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, ...READ MORE