Most state and federal employment discrimination statutes prohibit employers from making certain decisions “because of” an employee’s protected characteristics or activities. Courts interpreting this language have developed a number of frameworks and standards to assess whether a plaintiff has demonstrated the causation required to make out a claim of employment discrimination. Two standards frequently invoked by courts are but-for causation...
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The Supreme Court’s qualified immunity jurisprudence provides little guidance on a central component of the doctrine: the proper sources of “clearly established law.” As a result, lower courts often resort to a restrictive definition of clearly established law, requiring a controlling precedent in the jurisdiction where the violation took place. This formalist approach unmoors qualified immunity from its intended purpose: ensuring that...
Foreign patrimony laws nationalize ownership of cultural property found within a nation’s borders and prohibit export or private ownership. They are enforceable in the United States under the McClain doctrine. In defending against McClain-doctrine suits to repatriate stolen cultural property, defendants have begun to assert the “inactivity defense,” which is premised on the theory that enforcing certain patrimony...
The Supreme Court’s 2018 decision in Masterpiece Cakeshop left unresolved a central question running through the so-called wedding-vendor cases: Can the law ever grant religious exemptions to places of public accommodation without severely undermining antidiscrimination laws? The question is a difficult one, and people on both sides of these cases see the stakes as high. For supporters of same-sex marriage, these cases threaten...
With the rise of cryptocurrency as a popular investment, cryptocurrency wallets and exchanges have proliferated, offering platforms that allow investors to hold and trade cryptocurrency. Because these platforms hold cryptocurrency on their customers’ behalf, they present problems associated with custody. Namely, how do investors ensure that these platforms do not misuse or mishandle their assets? And how will customer assets be treated if a platform...
On any given day, local jails detain nearly half-a-million people who cannot afford bail. Opposition to this status quo, and to monetary conditions of pretrial release more broadly, has reached a fever pitch in recent years. Critics from across the political spectrum decry bail as a wellspring of mass incarceration and acknowledge its profoundly discriminatory effects, particularly within low-income communities of color. Academic studies link bail...
The False Claims Act (FCA) is the primary statute used by the federal government to police fraud in government programs. In addition to providing the government with a means to recover civil penalties and treble damages, the FCA also contains a qui tam provision that allows private citizens—called “relators”—to sue on behalf of the United States and obtain a portion of the judgment. To prevent duplicative relator-filed litigation, Congress—as...
Federal campaign finance law prohibits foreign nationals from making contributions or expenditures of “money or other thing of value” in connection with American elections and prohibits anyone from soliciting such a contribution or expenditure. The revelation that officials from Donald Trump’s 2016 presidential campaign met with Russian nationals after being told they would receive “information that would incriminate” Hillary Clinton,...
In the 2017 case Pena-Rodriguez v. Colorado, the Supreme Court held that the jury no-impeachment rule must yield to a criminal defendant’s Sixth Amendment right to an impartial jury when a court is faced with clear evidence that racial animus played a significant role in the jury’s decision to convict. Despite the Supreme Court notably cabining its decision to instances of racial bias alone, commentators have questioned whether...
Since its inception more than four decades ago, the Committee on Foreign Investment in the United States (CFIUS) has transformed from a relatively powerless monitoring body to a major regulatory hurdle for cross-border deals. This shift has been accompanied by increasing concerns from scholars and transacting parties regarding CFIUS’s lack of accountability and transparency. Yet, CFIUS’s scope has only continued to widen, as evidenced by...