Volume 70
Reading Remedially: What Does King v. Burwell Teach Us About Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA § 113(h)?
Apr. 20, 2017—Reading Remedially: What Does King v. Burwell Teach Us About Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA § 113(h)? ABSTRACT How far should judges go in trying to effectuate the goals of a statute, especially in a world where Congress is increasingly partisan and unproductive? In King v. Burwell, the...
Reconstructing Local Government
Mar. 21, 2017—Reconstructing Local Government ABSTRACT After the Civil War, the South faced a problem that was almost entirely new in the United States: a racially diverse and geographically integrated citizenry. In one fell swoop with emancipation, millions of former slaves were now citizens. The old system of plantation localism, built largely on the feudal control of...
The Jurisdiction Canon
Mar. 21, 2017—The Jurisdiction Canon ABSTRACT This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject-matter jurisdiction. That principle is reinforced by a canon of statutory interpretation according to which statutes conferring federal subject-matter jurisdiction are to be construed...
Causal Responsibility and Patent Infringement
Mar. 21, 2017—Causal Responsibility and Patent Infringement ABSTRACT It is not uncommon for multiple parties in the stream of commerce—manufacturers, distributors, end users—to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them—particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions—have...
Terrorist Speech on Social Media
Mar. 21, 2017—Terrorist Speech on Social Media ABSTRACT The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of...
Unambiguous Deterrence: Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings
Mar. 21, 2017—Unambiguous Deterrence Ambiguity Attitudes in the Juvenile Justice System and the Case for a Right to Counsel During Intake Proceedings ABSTRACT This Note is the first to apply behavioral insights about ambiguity attitudes to deterrence models within the juvenile justice system. Drawing on insights from behavioral economics and psychology literature, this Note argues that juveniles...
No VIP Treatment: ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement
Mar. 21, 2017—No VIP Treatment ACOs Should Not Get Waiver Protection from the Prohibition on Beneficiary Inducement ABSTRACT Accountable Care Organizations (“ACOs”) require flexibility from the existing healthcare fraud and abuse framework. This flexibility includes a waiver from the prohibition on beneficiary inducement, affording ACOs significant freedoms to employ inducements in ways that other healthcare delivery models...
Sector Agnosticism and the Coming Transformation of Education Law
Jan. 27, 2017—Sector Agnosticism and the Coming Transformation of Education Law ABSTRACT Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private school choice devices like vouchers, tax...
Monopolies in Multidistrict Litigation
Jan. 27, 2017—Monopolies in Multidistrict Litigation ABSTRACT When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet...
Aging Injunctions and the Legacy of Institutional Reform Litigation
Jan. 27, 2017—Aging Injunctions and the Legacy of Institutional Reform Litigation ABSTRACT Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional...
A Regulatory Theory of Legal Claims
Jan. 27, 2017—A Regulatory Theory of Legal Claims ABSTRACT Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in...
The Securities Black Market: Dark Pool Trading and the Need for a More Expansive Regulation ATS-N
Jan. 27, 2017—The Securities Black Market: Dark Pool Trading and the Need for a More Expansive Regulation ATS-N ABSTRACT This Note analyzes the effect certain Alternative Trading Systems known as “dark pools” have on the market, as well as how the current regulatory scheme falls short in protecting trade and execution quality. A number of regulatory loopholes have...
The Chancery Bank of Delaware: Appraisal Arbitrageurs Expose Need to Further Reform Defective Appraisal Statute
Jan. 27, 2017—The Chancery Bank of Delaware: Appraisal Arbitrageurs Expose Need to Further Reform Defective Appraisal Statute ABSTRACT Appraisal arbitrageurs—hedge funds who purchase target stock after the announcement of a merger solely to pursue appraisal—test the bounds of aim of appraisal rights to protect dissenting shareholders from majority expropriation. The backlash against appraisal arbitrage has uncovered a...
An Ocean Between Us: The Implications of Inconsistencies Between the Navigational Laws of Coastal Arctic Council Nations and the United Nations Convention on the Law of the Sea for Arctic Navigation
Jan. 27, 2017—An Ocean Between Us: The Implications of Inconsistencies Between the Navigational Laws of Coastal Arctic Council Nations and the United Nations Convention on the Law of the Sea for Arctic Navigation ABSTRACT Who determines the “rules of the road” for once inaccessible Arctic shipping routes? This Note examines the implications for navigation and protection of...