Rule 10b-5 and the securities-fraud action provide a private enforcement tool only where litigants can show a defendant’s misrepresentation impacted the price of a security. But investors increasingly demand disclosure about how a corporation interacts with stakeholder groups such as employees, consumers, and communities. Because these “sustainability disclosures” are aimed at long-term value, misrepresentations will only...
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In the 1951 case United States ex rel. Touhy v. Ragen, the Supreme Court determined that courts can’t hold federal agency officials in contempt for refusing to comply with nonparty subpoenas if they do so pursuant to valid agency regulations. Though the Court suggested that litigants could still challenge these noncompliance decisions, it didn’t flesh out what that process would look like. Following Touhy, federal...
Plea bargaining dominates the modern criminal justice system. Constitutional safeguards, however, have only slowly followed this fundamental shift in criminal adjudication. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court extended the Sixth Amendment’s right to counsel to situations in which deficient counsel leads a defendant to forgo a beneficial plea agreement. The Court’s test left state court...
Over the coming decades, experts estimate that twenty-five percent of all plant and animal species may go extinct. Climate change directly contributes to species extinction through ecosystem shift, and accelerates other drivers of extinction such as destruction of habitat and pollution. The Endangered Species Act is the only legal tool in the United States to directly protect against the threat of species extinction, and critical...
State-sponsored cyberattacks are on the rise. With the continually growing presence of automated and autonomous technologies in our lives, the ability to harm individuals from behind a keyboard is becoming an increasingly plausible and desirable option for foreign states seeking to target persons abroad. Those particularly vulnerable to such attacks include political dissidents, activists, and any individuals...
Incarcerated transgender individuals with gender dysphoria have increasingly turned to the courts to seek medical relief in the form of gender confirmation surgery (GCS). These claims generally allege that prison officials’ denials of GCS amount to deliberate indifference, which is forbidden under the cruel and unusual punishment provision of the Eighth Amendment. To date, the First, Fifth, and Ninth Circuits have been the primary federal appellate...
The Health Information Technology for Economic and Clinical Health Act (HITECH) successfully encouraged widespread adoption of electronic health records (EHR). Their suitability for “big data” analysis make EHR data immensely valuable for secondary research, which could help scientists develop new drugs, medical devices, and public-health knowledge. Thus far, EHR data have not been widely available to academic medical scientists in quantities...
Dating back to the Founding, theorists have touted the checking value of the press in exposing government corruption and abuse. Pretextual arrests targeting professional and citizen journalists raise significant First Amendment concerns. Even a brief, “catch-and-release” detainment may altogether prevent a newsgatherer from capturing images or disseminating timely news updates from an event. In this sense, arrests of newsgatherers pose similar...
In June 2015, the Supreme Court decided Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. and held that disparate impact claims are cognizable under the Fair Housing Act. Four years later, in August 2019, the Department of Housing and Urban Development published a proposed rule purporting to align the agency’s regulations with the Supreme Court’s interpretation of the Fair Housing Act in Inclusive...
In 2019, the Supreme Court slammed the federal courthouse doors on partisan gerrymandering claims from contested state redistricting plans in Rucho v. Common Cause. Yet racial gerrymandering claims remain justiciable. Judicial review of contested redistricting plans is therefore suspended in a state where racial gerrymandering is unconstitutional at the same time that partisan gerrymandering is nonjusticiable, leaving federal courts in...