Public Employee Free Speech and the Privatization of the First Amendment

by Adam Shinar

Constitutional protection of public employee speech has been declining 
for the past forty years, yet the reason for the decline has remained elusive.  
This Article puts forward a novel theory situating public employee speech 
in  larger  structural  transformations  in  governmental  organization.    It 
identifies a “public/private convergence,” the main feature of which is that 
public officials are increasingly viewed as private employees, resulting in a 
significant erosion of their free speech rights.  This erosion is exacerbated 
by  rising  levels  of  privatization  and  civil  service  reforms  exhibiting  the 
same mode of thought: that public employees are no different from private 
employees.  These trends  [. . .]

Not What, but When Is an Offer: Rehabilitating the Rolling Contract

by Colin P. Marks

A number of courts have held that a contract is formed when deferred 
terms found inside the package are reviewed by the buyer and accepted by 
some act—usually use of the good.  This “rolling” contract approach has 
been widely criticized by commentators as an abomination of contract law 
that ignores a true application of the U.C.C., as well as the spirit of that 
code.    However,  the  approach  is  not  without  its  allure,  as  it  permits 
contracts to be formed in an efficient manner that may very well appeal to 
consumers.    Yet  too  strict  of  an  adherence [. . .]

Promissory Education: Reforming the Federal Student Loan Counseling Process to Promote Informed Access and to Reduce Student Debt Burdens

by Amanda Harmon Cooley

Student loan debt in the United States is now estimated to exceed one 
trillion  dollars.    However,  in  obtaining  financial  assistance,  many 
postsecondary  students  do  not  contemplate the long-term implications  of 
the legal obligations that they accept as conditions for receipt of student 
loan  funds.    This  mass  failure  to  realize  the  requirements  attached  to 
signing  promissory  notes  and  entering  into  binding  loan  contracts  has 
recently  led  to  several  rounds  of  reform  by  the  federal  government.  
Unfortunately,  these  [. . .]

Modern Forum Shopping in Bankruptcy

by Samir D. Parikh

In  1978,  changes  to  the  venue  rules  for  bankruptcy  cases  created 
surprisingly  permissive  venue  selection  procedures.    Since  that  time, 
corporate  bankruptcy  cases  have  been  characterized  by  harmful  forum 
shopping.    Recently,  some  skeptics  have  argued  that  forum  shopping  in 
bankruptcy  is  vastly  overstated—a  phenomenon  that  peaked  many  years 
ago.  An empirical review of the 159 largest bankruptcy cases filed from 
January 1, 2007 to June 30, 2012 establishes that this assessment is false.  
69% of the bankruptcy cases in my study group were forum shopped.  Over 
a  two-decade  period,  the  frequency  with  which  large [. . .]

Between Seminole Rock and a Hard Place: A New Approach to Agency Deference

by Kevin O. Leske

In Bowles v. Seminole Rock & Sand Co. the United States Supreme 
Court  held  that  federal  courts  must  defer  to  an  administrative  agency’s 
interpretation  of  its  own  regulation  unless  the  interpretation  “is  plainly 
erroneous or inconsistent with the regulation.”  Astoundingly, despite its 
doctrinal  significance  and  practical  importance  to  our  administrative 
state, the Seminole Rock deference doctrine has gone largely unexamined 
both by the legal community and by the Supreme Court, particularly when 
compared to the landmark deference doctrines announced in Skidmore v. 
Swift  &  Co.
 and  Chevron  U.S.A.  Inc.  v.  Natural  Resources  Defense 
Council, Inc. 
[. . .]

“It’s Not You, It’s Me”: Assessing an Emerging Relationship Between Law and Social Science

by Tristin K. Green

This  Essay  isolates  and  assesses  an  overlooked  consideration  on  an 
emerging  and  significant  issue  in  employment  discrimination  law.    The 
emerging  issue:  When  should  employers  be  held  liable  for  established 
widespread  differential  treatment  within  their  organizations?    The 
overlooked consideration: the relationship between law and social science.  
Although  this  Essay  focuses  closely  on  a  specific  doctrinal  issue  in 
employment discrimination law, it also sets broad theoretical groundwork 
for thinking about the implications of the relationships that might emerge 
between law and social science in a variety of legal realms. 

Minn-Chem and the New Normal: A Revitalized Foreign Trade Antitrust Improvements Act

by Cassandra Beckman Widay

For  over  a  century,  the  judiciary  has  faced  delicate  questions 
about  the  appropriateness  of  invoking  U.S.  antitrust  law  to 
potentially  hold  foreign  actors  accountable  for  anticompetitive 
conduct.    The  Foreign  Trade  Antitrust  Improvements  Act  (FTAIA) 
passed  in  1982  with  the  well-intentioned  aim  of  establishing 
guidelines in this area.  However, for many of the ensuing years, the 
statutory  language  was  interpreted  and  applied  in  varying  ways—
evoking great uncertainty about the potential [. . .]

Agency Discretion and Statutory Mandate in a Time of Inadequate Funding: An Alternative to In re Aiken County

by Bret Kupfer

When  an  agency  fails  to  abide  by  a  statutory  mandate,  aggrieved 
parties may petition the courts for an order compelling the agency to act.  
In  the  interest  of  Congress’s  constitutional  power,  courts  will  grant  the 
petition and force agencies to comply.  However, it is unclear whether an 
agency  violates  a  statutory  mandate  when  Congress  intentionally 
withholds adequate funds to comply with the mandate. 
On  August  13,  2013,  the  United  States  Court  of  Appeals  for  the 
District of Columbia Circuit ordered the Nuclear Regulatory Commission 
to  spend  $11.1  million [. . .]

Starving the Dark Markets: International Injunctions as a Means to Curb Small Arms and Light Weapons Trafficking

by Daniel M. Salton

International arms sales are a big business.  This understatement fails 
to elucidate the extensive industrial and economic impact of the weapons 
trade  between  nations.    One  of  the  most  influential  portions  of  is  the 
production  and  sale  of  Small  Arms  and  Light  Weapons  (SALW).    Yet 
despite  SALW  sales  valued  at  billions  of  dollars  per  year,  little 
international regulation exists to control these sales. 
While most SALW sales occur within the legitimate sphere of business, 
a  large  number  of  SALW  are  sold  and  resold  through  the  “grey”  and 
“black”  markets:  illegal   [. . .]

Perpetually Turning Our Backs to the Most Vulnerable: A Call for the Appointment of Counsel for Unaccompanied Minors in Deportation Proceedings

by Samantha Casey Wong

The rate of young illegal migrants crossing the United States’ borders has reached unprecedented levels. Many children are fleeing their home countries in order to escape gang violence or to reunite with their family in the United States. Others are being smuggled into the country without any comprehension of the migration. In 2012, the United States Border Patrol apprehended a [. . .]

The New York City Sugar-Sweetened Beverage Portion Cap Rule: Lawfully Regulating Public Enemy Number One in the Obesity Epidemic

by Kara Marcello

Faced with an obesity epidemic, on September 13, 2012, the New York City Board of Health became the first local administrative body to amend its health code to restrict the size of sugar-sweetened beverages sold in the food service establishments subject to its jurisdiction. A legal challenge led by the American Beverage Association quickly followed. In March 2013, the New [. . .]

Providing Equal Investment Opportunity Via Securities Exchange Act Section 13(f)

by Ryan M. Carpenter

In 1975, Congress amended the Securities Exchange Act of 1934, incorporating section 13(f) on Periodic Reporting requirements of institutional investment managers. The law mandates that institutional investors file a holdings report, known as Form 13F, with the Securities and Exchange Commission for public distribution. The law provides filers with confidential treatment when in the public interest. This Note argues [. . .]

Integration Reclaimed: A Review of Gary Peller’s Critical Race Consciousness

by Michelle Adams

Integration occupies a contested and often paradoxical place in legal and public policy scholarship and the American imagination. Today, more Americans are committed to integration than ever before. Yet this attachment to integration is hardly robust. There is a widespread perception that integration has failed. A vanishingly small percentage of social and economic resources are spent on integration. At the [. . .]

Sharing the Cathedral

by Rashmi Dyal-Chand

Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it [. . .]

Wrongful-Aspect Overdetermination: The Scope-of-the-Risk Requirement in Drunk-Driving Homicide

by Eric A. Johnson

Tort law’s scope-of-the-risk rule says that a defendant is liable for another person’s injury only if the injury resulted from the very risks that made the defendant’s conduct wrongful. Criminal law scholars have neglected the question whether the scope-of-the-risk rule (or its wrongfulaspect variant) also applies in criminal cases. But the question has divided the courts. In drunk-driving homicide cases, [. . .]

Strange Traffic: Sex, Slavery, and the Freedom Principle

by Anders Walker

This Article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. First, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Second, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal [. . .]

Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them

by Joseph William Singer

The subprime mortgage crisis was not only an economic disaster but posed challenges to traditional rules of property law. Banks helped create the crisis by marketing mortgages through unfair and deceptive practices. They induced many consumers to take out high-priced loans they could not afford and then passed the risk to investors who were fooled into thinking these were safe [. . .]

Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards

by David O. Taylor

The United States Court of Appeals for the Federal Circuit exists, at least in part, to achieve goals related to patent law that the Supreme Court singularly failed to achieve. Since the Federal Circuit’s inception just over thirty years ago, however, critics have shifted blame for problems with the patent system from the Supreme Court to the Federal Circuit. A [. . .]

Let Judges Judge: Advancing a Review Framework for Government Securities Settlements Where Defendants Neither Admit Nor Deny Allegations

by George L. Miles

 It has become increasingly common in the years following the 2008 financial crisis for the public to read news headlines of the latest hundred million dollar settlements reached between the United States federal government and major corporations wherein the defendants do not admit or deny the charges alleged.  This Note analyzes why one agency in [. . .]

A Tale of Two Searches: Intrusive Civil Discovery Rules Violate the Fourth Amendment

by Chad DeVeaux

 In this Essay, I argue that civil discovery rules compelling the production of private papers violate the Fourth Amendment’s prohibition against unreasonable searches.  A “search” occurs when a government agent intrudes upon a sphere in which society recognizes “a reasonable expectation of privacy.”  Implicit in this definition is an affinity for private papers such as [. . .]

Nonprofits, Speech, and Unconstitutional Conditions

by Lloyd Hitoshi Mayer

 This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding accepted by nonprofits and demonstrates its application by reviewing the Court’s landmark decisions in this area.  It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such [. . .]

Kimits on the Perfect Preventive State

by Michael L. Rich

 Traditional methods of crime prevention—the punishment of the culpable and the preventive restraint of the dangerous—are slowly being supplemented and supplanted by technologies that seek to perfectly prevent crime.  For instance, the federal government is developing in-car technology that would prevent vehicle operation when a driver has a blood alcohol level in excess of the [. . .]

Seeking Consistency for Prior Consistent Statements: Amending Federal Rule of Evidence 801(d)(1)(B)

by Liesa L. Richter

The Advisory Committee for the Federal Rules of Evidence was hard at work in 2013 trying to bring resolution to a mystery that has plagued Rule 801(d)(1)(B) since its enactment thirty-eight years ago.  Scholars, judges, and litigants have long pondered why the drafters of Rule 801(d)(1)(B) carved out a hearsay exemption for prior consistent statements [. . .]

Seeking Solutions to Financial History Discrimination

by Lea Shepard

 Employers’ use of credit reports to evaluate prospective job applicants has generated considerable scrutiny in the popular press and academic literature, but few proposals for reform.  This Article explores three possible ways of reducing the risk of financial history discrimination in the employment setting. First, imposing inquiry limits on employers’ use of credit reports, a [. . .]

Crosspollination of Same-Sex Parental Rights Post-DOMA: The Subtle Solution

by Dave Woods

In the summer of 2013, the United States Supreme Court, to great fanfare, struck down the central provision of the seventeen-year-old Defense of Marriage Act (“DOMA”).  Yet a second DOMA provision, denying full faith and credit for same-sex marriages, was not overturned, meaning individual states remain free to ban and refuse recognition for same-sex unions. [. . .]

Symptom-Based Gun Control

by Fredrick E. Vars

 People out of touch with reality should not have guns.  This Article proposes empowering police officers to take away guns and gun rights from individuals suffering from delusions or hallucinations.  This proposal is inspired by the Navy Yard shooting, but is also supported by evidence showing a correlation between these psychotic symptoms and violence.  The [. . .]

Gun Control Legislation in Connecticut: Effects on Persons with Mental Illness

by Michael A. Norko & Madelon Baranoski

 This Article examines the ways in which Connecticut and federal legislative efforts on gun control have affected persons with mental illness in the state and includes a brief history of that legislation in the context of tragic gun violence.  There have been two major legislative and policy directions: (1) federal and state prohibitions on gun [. . .]

Regulating Firearms Through Litigation

by Patrick Luff

 As a result of relatively weak regulation, firearm use leads to massive negative externalities.  Efforts to minimize these social costs via legislation have been unsuccessful, which have led individuals and government entities to seek regulation through another avenue: litigation.  This use of the courts as a regulatory gap-filler raises vital questions, among which perhaps the [. . .]

The Shooting Cycle

by Josh Blackman & Shelby Baird

 The pattern is a painfully familiar one.  A gunman opens fire in a public place, killing many innocent victims.  After this tragedy, support for gun control surges.  With a closing window for reform, politicians and activists quickly push for new gun laws.  But as time elapses, support decreases.  Soon enough, the passions fade, and society [. . .]

A Return to the States’ Rights Model: Amending the Constitution’s Most Controversial and Misunderstood Provision

by Meg Penrose

This Article seeks to return to the intent of the Symposium, which was to stimulate a meaningful dialogue on the modern Second Amendment.  More specifically, it proposes a return to the states’ rights model that predated the Supreme Court’s narrow decisions in District of Columbia v. Heller and McDonald v. City of Chicago by using [. . .]

The Right to Arms and Standards of Review: A Tale of Three Circuits

byDavid T. Hardy

In District of Columbia v. Heller and McDonald v. Chicago, the U.S. Supreme Court recognized an individual right to arms.  The Court offered limited guidance as to standard of review, only ruling out rational basis. This Article takes a pragmatic approach to the standard of review issue.  First, it explores the practical basis for heightened [. . .]

The Steepness of the Slippery Slope: Second Amendment Litigation in the Lower Federal Courts and What It Has to Do with Background Recordkeeping Legislation

by Michael P. O'Shea

 Proposals for federal gun control have recently focused on expanding background checks and recordkeeping requirements for private firearms transfers.  This Article places the debate about such legislation in a fuller context that includes the actions of the executive and judicial branches, as well as current gun control efforts in the states.  This enables a more [. . .]

The Ineludible (Constitutional) Politics of Guns

by J. Richard Broughton

The murders at Newtown intensified the American political debate about guns—a debate that often fits within the framework of a larger national conversation about violent crime and the political approaches to addressing it.  Yet the gun control debate has resulted in a strange but fascinating intersection of law and politics, particularly law and politics of [. . .]

Mental Illness and the Second Amendment

by Clayton E. Cramer

In the past, American laws seldom attempted to regulate the possession of firearms by the mentally ill.  This surprising tradition has waned following a recent series of highly-publicized mass murders that were committed by persons who were identifiably mentally ill before the crime occurred.  These tragedies have focused attention on the question of how a [. . .]

Liability Insurance and Gun Violence

by Peter Kochenburger

Gun violence and mass shootings have dominated headlines during the last several years.  These tragedies, including the Sandy Hook Elementary School shooting, received national and international attention and prompted new demands to address gun violence in the United States.  Among the many proposals advanced by the media, advocacy groups, legislators, and academics is mandating liability [. . .]

Insuring Against Guns?

by George A. Mocsary

 This Article examines whether mandating liability insurance for firearm owners would meet its avowed goals of efficiently compensating shooting victims and deterring unlawful and accidental shootings without creating a net social loss by chilling socially beneficial gun use.  In the process, the Article also examines whether nonmandatory liability insurance may enable socially desirable, but potentially [. . .]

An International Law Response to Economic Cyber Espionage

by Christina Parajon Skinner

 Cyber threats have emerged as one of the most serious dangers to U.S. and global security.  Increasingly, malicious actors—some private, but others that appear to be state-sponsored—seek to advance their strategic aims through violent or non-violent cyber-attacks.  This Article considers the problem of non-violent, yet still destructive, economic cyber espionage, which targets the intellectual, industrial, [. . .]

The Necessity of an Equity and Comity Analysis in Younger Abstention Doctrine

by Drew Alan Hillier

 Today, courts and commentators treat the Younger doctrine as a central rule with several enumerated exceptions. This prevailing view is incorrect. An analysis of the exceptions to the Younger abstention doctrine demonstrates that the exceptions are merely applications of the equity and comity principles that the Younger Court used to justify abstention. If federal courts [. . .]

“The Soldier Bears the Deepest Wounds and Scars of War”: Mobilizing Connecticut to Implement a Veterans Treatment Court

by Rosendo Garza Jr.

 The first Veterans Treatment Court (“VTC”) opened in 2004 and aimed to help veterans who ran afoul of the law. These problem-solving courts not only serve to treat the underlying issues many veterans suffer post-military service, but also hold veterans accountable. As a consequence of their incredible results, there are now over one hundred VTCs [. . .]

The Limits of Anti-Obesity Public Health Paternalism: Another View

by Katherine Pratt

 This Article critiques Professor David Friedman’s article, Public Health Regulation and the Limits of Paternalism, and sets forth an alternative view of the limits of anti-obesity public health paternalism. Specifically, it critiques Friedman’s classification of public health interventions based on how coercive the intervention is, and offers an alternative construct to analyze paternalistic public health [. . .]

Cigarettes vs. Soda?: The Argument for Similar Public Health Regulation of Smoking and Obesity

by Laura Hoffman

While smoking and obesity may have nuanced differences as public health problems, this Article briefly argues that those differences should not pose an obstacle to certain paternalistic attempts to regulate them similarly. Specifically, observed successes in reducing smoking through taxation, labeling requirements, and advertising bans could likewise prove successful in reducing obesity. 

Sugary Drinks, Happy Meals, Social Norms, and the Law: The Normative Impact of Product Configuration Bans

by Lindsay F. Wiley

 What role should government play in discouraging harmful overconsumption? What modes of government intervention best strike the balance between effectiveness and political acceptability? It is well established that government has a legitimate interest in protecting the health and safety of the people, even from their own choices and actions. Furthermore, there is no fundamental right [. . .]

Limiting Liberty to Prevent Obesity: Justifiability of Strong Hard Paternalism in Public Health Regulation

by Thaddeus Mason Pope

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare. Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective [. . .]

Personal Health in the Public Domain: Reconciling Individual Rights with Collective Responsibilities

by Zita Lazzarini & David Gregorio

 This Article defends a more robust conception of public health paternalism than that proposed by Professor Friedman, one that goes beyond the use of “soft” paternalism or nudges. Public health, and the government in general, help influence the choices people make in their daily lives through a multitude of mechanisms. Whenever possible, public health professionals [. . .]

Paternalism, Public Health, and Behavioral Economics: A Problematic Combination

by Wendy Mariner

Many critiques of public health regulations assume that measures directed at industry should be considered paternalistic whenever they limit any consumer choices. Given the presumption against paternalistic measures, this definition of paternalism puts government proposals to regulate industry to the same stringent proof as clearly paternalistic proposals to directly regulate individuals for their own benefit. [. . .]

Three Comments on Paternalism in Public Health

by Yofi Tirosh

 This Article offers three critical observations concerning the debates surrounding paternalism in public health. First, the assessment of paternalistic health-promoting policies stops at efficacy considerations and fails to consider the possibility that such policies may infringe basic rights. Second, discussions on health and paternalism are not sufficiently context-specific, as they tend to classify policies according [. . .]

Beyond Paternalism: Rethinking the Limits of Public Health Law

by Wendy E. Parmet

 This response to David Friedman’s Public Health Regulation and the Limits of Paternalism challenges his claim that the rejection of paternalism creates a “limit” on public health law’s potential for addressing the obesity epidemic and offers a defense of public health laws as exercises of self-governance. The Article begins by showing why many of the [. . .]

Public Health Regulation and the Limits of Paternalism

by David Adam Friedman

 This Article explores the role of paternalism in regulatory efforts to improve public health, focusing mostly on obesity, but also accounting for recent developments in other public health arenas. First, the Article describes a spectrum of interventions that regulators can implement in the public health zone, ranging from soft paternalism to hard paternalism. Second, the [. . .]

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