Insufficient Mechanisms for Orange Book Corrections and the FDA’s Ministerial Role: A Need for Reform

by Jane F. Djung

The Hatch-Waxman Act revolutionized the prescription drug industry by streamlining the process for generics to gain FDA approval. The Act is credited as the primary source of infusing generics into the present day pharmaceutical landscape. However, overly broad use codes provided by the brand drug manufacturers for publication in the Orange Book may preclude generic [. . .]

Mashantucket Pequot Tribe v. Town of Ledyard: The Preemption of State Taxes Under Bracker: The Indian Trader Statutes, and the Indian Gaming Regulatory Act

by Edward A. Lowe

The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on [. . .]

Are You Recording This?: Enforcement of Police Videotaping

by Martina Kitzmueller

Increasing numbers of police departments equip officers with dashboard or body cameras. Advances in technology have made it easy for police to create and preserve videos of their citizen encounters. Videos can be important pieces of evidence; they may also serve to document police misconduct or protect officers from false allegations. Yet too often, videos [. . .]

Hands Off Our Fingerprints: State, Local, and Individual Defiance of Federal Immigration Enforcement

by Christine N. Cimini

Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the  [. . .]

Associational Standing for Cities

by Kaitlin Ainsworth Caruso

Both states and private associations have well-established standing to assert claims in federal court based on harm to their constituents. Cities, though they have much in common with both states and associations, are generally denied that very sort of representational standing. That denial unnecessarily squelches local engagement and cities’ ability to address issues central to [. . .]

Copyright at Common Law in 1774

by H. Tomas Gomez-Arostegui

As we approach Congress’s upcoming reexamination of copyright law, participants are amassing ammunition for the battle to come over the proper scope of copyright. One item that both sides have turned to is the original purpose of copyright, as reflected in a pair of cases decided in Great Britain in the late 18th century—the birthplace [. . .]

Breaking Down BEPS: Strategies, Reforms, and Planning Responses

by Michael V. Sala, C.P.A.

In response to a call from the G20 to address perceived aggressive international tax planning strategies, the Organization for Economic Co-operation and Development initiated its Base Erosion and Profit Shifting project in 2012. The project’s flagship document provided a broad outline of the path to reform current international tax norms and highlighted several specifically disfavored [. . .]

Law & Science: Toward a Unified Field

by Deborah M. Hussey Freeland, Ph.D., J.D.

To be relevant to the real world and to have a reasonable chance of producing fair outcomes, legal and political decisionmaking must take science into account. Scholars have been aware of this for over fifty years. The need for law to be informed by rigorous science is compelling, as we must make collective decisions that  [. . .]

State’s Rights, Last Rites, and Voting Rights

by Guy-Uriel E. Charles & Luis Fuentes-Rohwer

There are two ways to read the Supreme Court’s decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County [. . .]

Formerly Manufacturing Entities: Piercing the “Patent Troll” Rhetoric

by Kristen Osenga

Everyone hates patent trolls—those companies that “hijack somebody else’s idea” and use the patents to “extort some money” from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll— the formerly manufacturing entity. These patent trolls [. . .]

The Fourth Zone of Presidential Power: Analyzing the Debt-Ceiling Standoffs Through the Prism of Youngstown Steel

by Chad Deveaux

In this Article, I use the Youngstown Steel Seizure Case to assess the reoccurring debt-ceiling standoffs between Congress and the White House. If the Treasury reaches the debt limit and Congress fails to act, the president will be forced to choose between three options: (1) cancel programs, (2) borrow funds in excess of the debt [. . .]

Trans-Personal Procedures

by Roger Michalski

Recent court decisions have reignited a national debate about corporate personhood. This debate recognizes that the legal status of artificial persons is of great importance to the fabric of society, law, and politics. Questions about the status of artificial persons are typically raised in the context of substantive law, where corporate personhood has triggered strong [. . .]

An Empirical Analysis of Diversity in the Legal Profession

by Jason P. Nance & Paul E. Madsen

The purpose of this Study is to empirically examine the diversity of the legal profession. The primary distinctive features of this empirical analysis are that it evaluates diversity in the legal profession by (a) carefully comparing it against other prestigious professions that have significant barriers to entry, and (b) focusing on young individuals who recently [. . .]

The Unavoidable Implication of McCullen v. Coakley: Protection Against Unwelcome Speech is not a Sufficient Justification for Restricting Speech in Traditional Public Fora

by Zachary J. Phillipps

The First Amendment rights of speakers and the government’s power to restrict speech to protect unwilling listeners come together in the Supreme Court’s buffer-zone jurisprudence. Litigation brought by sidewalk counselors to eliminate buffer zones around reproductive healthcare facilities has reached the Supreme Court several times. Before Hill v. Colorado, the Court was reluctant to hold [. . .]

Due Process and the Non-Citizen: A Revolution Reconsidered

by Joseph Landau

In the pantheon of the Supreme Court’s procedural due process jurisprudence, commentators typically describe Mathews v. Eldridge—the canonical case balancing governmental interests and individual rights—as a low point for individual liberty and a retreat from the high-water mark of Goldberg v. Kelly. But the due process revolution, and Mathews in particular, has dramatically affected the [. . .]

Emotional Duties

by Erica Goldberg

The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on a hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that  [. . .]

Demand Side Reform in the Poor People’s Court

by Jessica K. Steinberg

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often [. . .]

Show and Tell?: Students’ Personal Lives, Schools, and Parents

by Emily Gold Waldman

Public schools learn about their students’ personal lives in many ways. Some are passive: a teacher observes a student kissing someone, or overhears a conversation among friends. But schools also engage in more active information-gathering about students’ personal lives, through surveys and informal conversations between students and teachers, administrators, school psychologists, counselors, coaches, and other [. . .]

The (Questionable) Legality of High-Speed “Pinging” and “Front Running” in the Futures Markets

by Gregory Scopino

Institutional investors complain that high-frequency trading (HFT) firms engage in high-speed “pinging” and “front running” of their orders for trades. By sending out lightning fast “ping” orders for trades that operate much like sonar does in the ocean, HFT firms can detect when institutional investors will make large trades in futures contracts. Once a large [. . .]

Foreword

by Dean Timothy S. Fisher

In the early 1960s the United States Supreme Court struck down a
Connecticut law that made it a crime to use “any drug, medicinal article or
instrument for the purpose of preventing conception.” Estelle Griswold, the
Executive Director of the Planned Parenthood League of Connecticut, was
arrested when the New Haven Planned Parenthood clinic provided
contraceptive counseling and [. . .]

Symposium Introduction

by Laura Ann Keller & Elizabeth O'Donnell

Fifty years ago, the Supreme Court of the United States cemented a new
Constitutional right: the right to privacy in Griswold v. Connecticut. What
began as a “penumbral” right has, in the decades since the decision,
developed into one of the quintessential protections afforded to citizens of
the United States. On November 14, 2014, leading [. . .]

Courtly Love

by Dave Woods

We locked our hearts
up in a case
and up it fell
till court by court
it certainly [. . .]

Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century

by Priscilla J. Smith

This Article examines the use by anti-contraception advocates of the claims that “contraception harms women” and “contraception is abortion,” claims made most prominently in litigation challenging Obamacare’s contraceptive coverage requirement. See Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014). The Article uncovers the nineteenth-century roots of these arguments and the strategic reasoning behind their current revival, to reveal that these claims are part of a broad attack on contraception grounded in opposition to [. . .]

Compelling Interests and Contraception

by Neil S. Siegel & Reva B. Siegel

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to a federal law requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices concluded that the government has compelling interests in ensuring employees access to contraception, but did not discuss these interests in any detail. In what follows, we clarify these interests by connecting discussion in
the Hobby Lobby opinions [. . .]

Griswold's Criminal Law

by Melissa Murray

This Symposium commemorates the fiftieth anniversary of Griswold v. Connecticut. In the fifty years since it was announced, Griswold’s logic has underwritten a broader commitment to reproductive rights—one that has expanded the right to contraception and secured a woman’s right to choose an abortion. Amidst these developments it is easy to overlook another aspect of Griswold’s history. Griswold also was part of a criminal law reform effort that sought to reimagine the state’s authority in [. . .]

Do You Know Why I Stopped You?: The Future of Traffic Stops in a Post-Heien World

by Sarah Ricciardi

Nearly twenty years after the U.S. Supreme Court’s decision upholding pretextual traffic stops in Whren v. United States, racial animosity between white police officers and black civilians is as pervasive as ever. Reports of unarmed black men killed at the hands of white law enforcement officers are becoming disturbingly common. Despite the national outcry against racial discrimination by law enforcement, the U.S. Supreme Court recently handed down a decision that will broaden police discretion still [. . .]

Reading Between the Lines of Electronic Health Records: The Health Information Technology for Economic and Clinical Health Act and Its Implications for Health Care Fraud and Information Security

by Joseph D. Szerejko

The Health Information Technology for Economic and Clinical
Health (HITECH) Act, which Congress passed as part of the American Recovery and Reinvestment Act of 2009, has set in motion a widespread increase in the use of electronic health records (EHRs) across the American health care industry. While EHRs are not new to health care, their being the standard format for purposes of documenting patients’ health records across the United States is a modern reality. [. . .]

Steering a Safe Course in Admiralty Removal Jurisdiction After the 2011 Federal Courts Jurisdiction and Venue Clarification Act

by Charles Modzelewski

Federal jurisdiction over admiralty actions originates in the United States Constitution. Congress, in the admiralty jurisdiction statute, pursuant to what is commonly referred to as the saving to suitors clause, reserved to plaintiffs in admiralty actions the option of pursuing remedies in state court. However, in 2011, Congress enacted the Federal Courts Jurisdiction and Venue Clarification Act (JVCA), which changed key language in the federal removal statute. The JVCA amendment has been interpreted by certain courts in a manner that has allowed removal  [. . .]

The Legal Void of Unpaid Interships: Navigating the Legality of Internships in the Face of Conflicting Tests

by Madiha M. Malik

Unpaid internships have come under increased scrutiny for their potential illegality under the Fair Labor Standards Act. Due to the limited case law and statutory guidance regarding interns, lower courts have issued conflicting opinions on the proper analysis courts should engage in to determine whether interns are considered “employees” under federal law. Such conflicting judicial interpretation is detrimental to both employers and interns. A bright line rule for determining when an intern qualifies as an employee under the FLSA is critical to settling the uncertainty in this area of the law.

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