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Exacting Assessments: Sheetz and the Problem of Stategraft
Get PDFIn the spring of 2024, the United States Supreme Court decided Sheetz v. County of El Dorado. The case resolved a long-standing question: whether the constitutional rules applying to ad hoc development exactions also apply to legislated exactions. They do. It is an important case, and one that may reconfigure the financing of municipal infrastructure. This Essay examines the case through the lens of Professor Bernadette Atuahene\u27s concept of stategraft, or the government illegally using its regulatory power to raise money from the poor and politically powerless. This Essay compares legislative exactions to other forms of municipal finance like special exceptions and argues that they actually provide fewer opportunities for stategraft. This Essay, therefore, concludes that legislated development exactions should not be subject to heightened constitutional review
Patent Law\u27s Role in Protecting Public Health
Get PDFInnumerable inventions implicate public health-including drugs, vac- cines, dietary supplements, and sewage treatment plants. Over the past cen- tury, the Patent Office and the courts have modulated the ability to obtain or enforce patents for these inventions-whether in response to a public health crisis or to protect the credulous public from unscrupulous inventors. While normative and policy-based arguments can justify these interventions, they\u27ve disrupted the delicate balance of two competing policy objectives in patent law- enhancing public welfare and promoting innovation. This Article offers a new approach for courts to protect public health in patent cases-by making public health an affirmative defense to infringement. If the patent owner has engaged in invention-related egregious misconduct that\u27s jeopardized public health, the court could render the patent unenforceable by dismissing the lawsuit. Or the court could render the patent temporarily unenforceable until the misconduct ceases and its ill effects on public health dissipate. This proposal aligns with the increasing use of equitable remedies in patent disputes and raises interest- ing normative and policy questions about the role of public health issues in patent law
The Internal Law of Democracy
Get PDFThe conventional focus of election law is the constitutional, statutory, and judicial constraints on election officials. But the operation of elections also depends on the law that election officials themselves create. This “internal law of democracy”—produced by state and local election officials and addressed to election personnel and workers—provides on-the-ground guidance on registration, voting, and vote counting; specifies internal processes and protocols; and interprets and translates the meaning of constitutional and statutory law for use within the election bureaucracy.
This Article initiates examination of the internal law of democracy. The Article begins by introducing the idea of internal law—developed in the field of administrative law—to the field of elections. Using this lens to examine local voting practices in the South during Jim Crow, the 2000 presidential election recount in Florida, and the 2020 mail-in ballot controversies in Pennsylvania, the Article shows that, for good or for ill, internal law bears on who votes, how they vote, and whether their votes are counted. This Article then provides a general account of the status, sources, varieties, and regulation of this internal law today. The analysis exposes the mix of express delegation, implied power, and home rule authority that undergirds these lawmaking practices.
After documenting the relevance, scope, and impact of internal law in elections, the Article contends that having the right kind of internal law is necessary for nonarbitrary election administration. Internal law that anticipates the operational needs of officials and provides practical guidance creates a basis for consistent, nonarbitrary treatment of voters. But to serve this productive role, as opposed to taking a pathological form as it did during Jim Crow and continues to do in places today, internal law must satisfy basic legality conditions. These conditions—consistency with external law, publicity, presumptively binding status, and public justification—are foundations for a jurisprudence of election administration. They also frame a reform agenda of monitoring internal law’s compliance with these constraints. Election law, like other fields of law, exists in an age of administration, and our attention must follow
Central Bank Undersight: Assessing the Fed’s Accountability to Congress
Get PDFAs America’s central bank, the Federal Reserve (“Fed”) is unique among independent agencies in exercising powers that the U.S. Constitution granted to the legislative branch—namely, regulating the value of money and borrowing funds directly from the public. In delegating these powers, Congress designed the Fed to ensure that its monetary policy decisions would be insulated from political interference. Furthermore, Congress has a constitutional obligation to maintain effective oversight of the Fed’s exercise of these duties. Over the past fifteen years, however, the scope and complexity of monetary policy has outpaced Congress’s ability to monitor these policies through existing mechanisms of oversight. For example, internal shifts in the Fed’s governance and power dynamics have led to the disappearance of dissents on monetary policy decisions, thereby hampering legislators’ abilities to discern the range of views that have informed those decisions. Moreover, in conducting its latest round of securities purchases (“QE4”) during 2020–22, the Fed did not provide legislators with cost-benefit analyses or risk assessments at any stage of the program. Indeed, QE4 is now likely to cost taxpayers more than $1 trillion, but its efficacy has still not been scrutinized by any external reviews. Over coming years, persistent congressional “undersight” could threaten the delicate balance between the Fed’s independence and its public accountability. Potential approaches to restoring that balance could include strengthened reporting requirements, secured access to sensitive information, and external reviews by congressional watchdogs
Chancery Court Declares Corwin Unavailable to Defend Against Unocal Claim for Injunctive Relief
No full textIn Corwin v. KKR Financial Holdings LLC, 125 A.3d 304 (Del.2015) ( Corwin ), the Delaware Supreme Court ruled that a fully informed, uncoerced vote of a majority of the company\u27s disinterested stockholders precludes application of the fact-based enhanced scrutiny standard of review under Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986) ( Revlon ). See In re Edgio, Inc. Shareholders Litigation, C.A. No. 2022-0624, 2023 WL 3167648, at *10 (Del. Ch. May 1, 2023) ( Edgio ). Because application of Corwin restore[s] business judgment review, alleged breaches of so-called Revlon duties by corporate directors effectively are cleansed by a qualifying stockholder vote. The policy underlying Corwin is relatively straightforward (at least in its articulation, if not its application): When disinterested stockholders make a mature decision about their economic self-interest, judicial second-guessing is almost completely circumscribed by the doctrine of ratification. Post-Corwin, some commentators have expressed concern that Corwin established a bright-line rule in an area where the Delaware judiciary previously had significant discretion in making enhanced scrutiny\u27s reasonableness inquiry. While Corwin has become a useful ex post tool to defeat post-closing damages claims premised on failure to satisfy the standard of conduct required under Revlon, the doctrine does have its limits. See Robert S. Reder & Robert W. Dillard, Chancery Court Declines to Apply Corwin at Pleading Stage to Cleanse Breach of Fiduciary Duty Claim Due to Material Non-Disclosures, 73 VAND. L. REV. EN BANC 17 (2020); Robert S. Reder & Amanda M. Mitchell, Chancery Court Refuses Pleading Stage Dismissal Under Corwin When Stockholders Not Fully Informed of Long-Overdue Financial Restatement, 73 VAND. L. REV. EN BANC 35 (2020)
Chancery Court Demonstrates Willingness to Apply Context-Specific Tests in Assessing Challenges to Advance Notice Bylaws
No full textIt is well established, under Delaware law, that stockholders have a fundamental right to \u27vote for the directors that the s[tock]holder[s] want [] to oversee the firm.\u27 Sternlicht v. Hernandez, 2023 WL 3991642 (Del. Ch. June 14, 2023) ( Sternlicht ). Moreover, [s]ubsumed within that fundamental right to vote is the right to nom- inate a competing slate. Despite this recognition, the Delaware Gen- eral Corporation Law is silent as to how a stockholder may propose a nominee for election. Strategic Inv. Opportunities LLC v. Lee Enters., Inc., 2022 WL 453607 (Del. Ch. Feb. 14, 2022) ( Strategic Investment Opportunities ). [T]o fill this gap, public companies have adopted so- called advance notice bylaws. Generally, advance notice bylaws require stockholders to pro- vide the corporation with prior notice of their intention to nominate di- rector candidates, together with detailed information about their nom- inees, their stockholdings, and other relationships with the corporation. As such, advance notice bylaws have become \u27commonplace\u27 tools for public companies to ensure \u27orderly meetings and election contests.\u2
E-Rate Program Expansion: A Pathway to Combating Cybersecurity Attacks in K-12 Schools
Get PDFEvery day, a K-12 school in the United States falls victim to a harmful cyberattack that can cost it millions of dollars and keep its doors closed for days or weeks. Schools are desperate for funding to purchase essential cybersecurity services and products to protect their school’s networks from these cyberattacks. Such funding should be available through the Federal Communications Commission’s (FCC) E-Rate program, which was established as part of the Telecommunications Act of 1996 to provide discounts for connectivity services in K-12 schools across the country. During the COVID-19 pandemic, schools and other telecommunications industry stakeholders submitted petitions asking the FCC to consider expanding the E-Rate program to include discounts for advanced firewall and network security services. While schools can currently utilize the E-Rate program to obtain discounts on telecommunications and internet services like cable modems, routers, and antennas, they are currently unable to use E-Rate program funding to purchase essential cybersecurity products and services, including advanced or next-generation firewalls, that would mitigate the impact of cyberattacks.
With technological advancements, hackers are more capable than ever to devastatingly harm school networks; as such, the technological needs for achieving connectivity to schools have changed since the 1996 Act was passed. Advanced or next-generation firewalls and other network security services are now more essential than ever to obtaining safe and efficient connectivity for K-12 schools. This Note proposes that the FCC immediately expand the E-Rate program to include essential cybersecurity products and services in the program’s eligible services list. The FCC has the requisite authority under the Telecommunications Act of 1996 to expand the E-Rate program’s eligible services list to keep up with changing technological needs. While different sectors of the federal government are working to resolve the cybersecurity problems schools are facing, what schools need most is immediate and accessible funding
The Harms of Heien: Pulling Back the Curtain on the Court\u27s Search and Seizure Doctrine
Get PDFIn Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”
This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan’s expectation that such cases would be “exceedingly rare.” Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose—an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark “audience” when assessing whether a mistake of law is reasonable.
In addition to exploring the study’s results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce
Rethinking Federal Inducement of Pretext Stops
Get PDFFew topics in policing have received more attention than pretextual traffic stops—traffic stops made for crime-fighting purposes. Community leaders, legislators, police executives, and even presidents have recognized that the overuse of pretext stops has deleterious effects, including racially disparate enforcement, needless death, and degraded public trust in law enforcement. The result is a growing movement at the state and local level to roll back the widespread use of this tactic.
As promising as these developments are, most discussions of pretext stops largely omit a key player that drives the problem: the federal government. Presidents from Bush to Biden have decried discriminatory pretext stops and federal investigations have pushed localities to limit their use of the tactic. Yet, behind the scenes, the federal government has long trained and incentivized police to use pretext stops widely