While peremptory challenges upon the basis of race, ethnicity, and gender have been held unconstitutional, and peremptory strikes upon the basis of sexual orientation have been regarded as increasingly suspect after United States v. Windsor, attorneys remain free to use peremptory challenges to remove potential jurors from the venire upon the basis of their gender identity or expression. The current state of affairs renders transgender...
Issue Archives
Much attention has recently been given to the current Securities and Exchange Commission reporting requirements for Schedule 13D, the beneficial ownership form many investors must file to report their equity holdings. However, relatively less focus has been given to the Schedule 13G, the short-form filing option, which requires less information and tends to attract less attention. The choice between the 13G or the 13D filing can come down...
The legal community suffered a great loss with the passing of Professor Harvey Goldschmid on February 12, 2015. A renowned legal scholar and policymaker, Professor Goldschmid greatly influenced modern securities law through his time at the Securities and Exchange Commission (SEC), where over the span of his career he served as a Commissioner, General Counsel, […]
I miss Harvey. Of course, I had heard about him long before coming to the Securities and Exchange Commission (SEC). He was quoted frequently, and his students appeared in many different parts of my life. I encountered them throughout America, both during the days I spent in the cattle business and the brokerage industry […]
American labor law classifies strikes according to both purpose and form. In terms of purpose, a strike over terms and conditions of employment is an economic strike while one over an employer’s violations of federal labor law is an unfair labor practice strike. With respect to form, the subcategories are less clear, but the National Labor Relations Board (NLRB or Board) and the courts have distinguished...
Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article...
In 1970, Congress enacted the Fair Credit Reporting Act (FCRA) to address concerns that inadequate safeguards existed to protect consumers in their interactions with credit reporting agencies. Government regulation of credit reporting is critical because the structure of the credit reporting industry does not adequately incentivize credit reporting agencies to maintain accuracy in consumers’ credit reports. Since the enactment of the FCRA, the...
With Congress divided over comprehensive immigration reform, federal and subfederal actors have stepped into the breach. In 2012 and 2014, in an effort to counter congressional paralysis, President Barack Obama extended deferred action to millions of undocumented noncitizen children and their parents. In doing so, he reignited debates about the constitutional boundaries of executive power. Among other things, these debates have highlighted the...
This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.
Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...