Archive: 2014

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

Free Speech and Guilty Minds

By:  Leslie Kendrick

 

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the ...READ MORE

 

Prosecuting Leakers the Easy Way: 18 U.S.C. § 641

By:  Jessica Lutkenhaus

 

18 U.S.C. § 641 prohibits the theft or misuse of federal government “things of value.” The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or ...READ MORE

Overcoming Administrative Silence in Prisoner Litigation: Grievance Specificity and the “Object Intelligibly” Standard

By:  Antonieta Pimienta

 

The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust available administrative remedies before filing a federal action challenging prison conditions. Thus, an inmate can only file a lawsuit in federal court after proceeding through each step ...READ MORE

On Mass Patent Aggregators

By: David L. Schwartz

 

Response to: Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117 (2013).

 

The debate about patent trolls is everywhere. From the op-ed pages of The Wall Street Journal and ...READ MORE

 

Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting

By:   Jarrod Shobe

 

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition ...READ MORE

Tort Law vs. Privacy

By:  Eugene Volokh

 

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the ...READ MORE

Manual Override? Accardi, Skidmore, and the Legal Effect of the Social Security Administration’s HALLEX Manual

By:  Timothy H. Gray

 

The Social Security Administration’s Disability Insurance program encompasses a mammoth adjudicatory and appellate process, rivaling in size the entire federal judiciary. The SSDI is principally governed by validly promulgated regulations, but the SSA also uses an ...READ MORE

 

An “Unfortunate Bit of Legal Jargon”: Prosecutorial Vouching Applied to Cooperating Witnesses

By:  Rajan S. Trehan

 

Vouching, which developed out of the Supreme Court’s desire to protect the jury’s right to evaluate credibility, traditionally forbids prosecutorial statements designed to enhance or attest to the credibility of a government witness. This Note examines ...READ MORE

Protecting Reliance

By:  Victor P. Goldberg

 

Reliance plays a central role in contract law and scholarship. One party relies on the other’s promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing ...READ MORE

Embedded International Law and the Constitution Abroad

  By: Sarah H. Cleveland

 

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Responsibility for Regime Change

By:  Jay Butler

 

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of ...READ MORE

The FTC and the New Common Law of Privacy

By:  Daniel J. Solove & Woodrow Hartzog

 

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal ...READ MORE