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Becoming a Doctrine
Get PDFOn the last day of the 2021–22 Term, the Supreme Court handed down a decision on “the major questions doctrine” and granted certiorari to hear a case presenting “the independent state legislature doctrine”—neither of which had been called “doctrines” there before. This raises a fundamental and underexplored question: how does a doctrine become a doctrine? Law students know the difference between doctrinal classes and seminars, but how does an idea bantered about in a seminar (say, about agencies deciding major questions) become a “doctrine” complete with judicial tests, steps, and exceptions? Taking an analogy to medicine, when does a series of symptoms become a “disease?” And, importantly, what consequences flow from attaching the label?
This Article tackles those important questions. It explores the significant consequences that come with the label “doctrine”—consequences for litigants, lower courts, and even theories of legal change. Becoming a doctrine is more than just semantics; it is a baptism that matters. And, significantly, it is a job not solely within the province of courts. This Article traces the fingerprints of outsiders on the journey from legal idea to doctrine. Comparing the process to doctrine evolution of the past, I argue that modern communication tools—new search methods, social media, and amicus briefing—give political agents the chance to “doctrinize” an idea quickly and to generate legal change through courts. In short, “becoming a doctrine” is now a campaign—and one that deserves our attention
Preserving the Futures of Young Offenders: A Proposal for Federal Juvenile Expungement Legislation
Get PDFPicture a sixteen-year-old named Sam. Perhaps this person reminds you of yourself as a teenager. Now imagine that Sam has made a terrible mistake and is arrested for cocaine possession. Perhaps they got the drugs from another kid at school or from a family member. But now Sam has a federal criminal record, which is likely to stick with them for life.
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This Note argues that federal courts should have the power to expunge juvenile records in cases like Sam’s. It advocates for legislation granting federal courts the power to expunge the criminal records of offenders who were under eighteen at the time of their offenses. Part I describes the history of federal juvenile expungement law, which leaves most juvenile offenders with no possibility of record relief. Part II describes the collateral consequences of a juvenile record and advocates for expungement as a means of reducing recidivism amongst juvenile offenders. Part III proposes a federal statutory framework for expungement of juvenile records. Finally, Part IV addresses likely counterarguments to statutorily guaranteeing expungement for a broader set of juvenile offenses.
This abstract has been taken from the author\u27s introduction
Fourteen Going on Forty: Challenging Sex Offender Registration for Juveniles Under the Fourteenth Amendment Equal Protection Clause
Get PDFPart I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model Penal Code draft and state supreme court decisions on the constitutionality of juvenile sex offender registration policies. Finally, Part V offers policy analysis and recommendations for state legislatures to create effective registration schemes for juvenile sex offenders, specifically tailored to the specific needs and circumstances of youth sex offenders.
This abstract has been taken from the author\u27s introduction
Eliminating Rule 609 to Provide a Fair Opportunity to Defend Against Criminal Charges: A Proposal to the Advisory Committee on the Federal Rules of Evidence
Get PDFFederal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.
This short essay begins by setting out the proposed rule change alongside a proposed Advisory Committee [n]ote. The balance of the essay elaborates on the [n]ote’s discussion. The discussion highlights the proposal’s consistency with recent White House and [U.S.] Department of Justice [(DOJ)] policy initiatives and the unique opportunity that the elimination of Rule 609 presents to the Advisory Committee to improve the fairness and legitimacy of American trials.
This abstract is taken from the author\u27s introduction
Assessing State Invasive Species Schemes Through the Lens of the Spotted Lanternfly
Get PDFInvasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and regulatory regimes, and since the spotted lanternfly—as well as several other invasive species— continue to spread, it begs the question of which states (if any) are equipped to handle the scourge of these problematic plants and animals, and which methods prove to be the most effective
Growing Pains: An Arkansas Case Study on Adolescent Autonomy and Access to Puberty Blockers for Gender-Affirming Care
Get PDFArkansas Act 626 outlaws any gender-affirming medical treatment for persons under eighteen years of age. This Note focuses on the evolving litigation surrounding Arkansas Act 626, the potential repercussions of the issues facing transgender adolescents, and the legal protections that may be implemented whether or not Arkansas Act 626 is upheld as a constitutional piece of legislation. It begins by examining the standard bases for administering puberty blocker treatments and addressing many of the misconceptions in medical treatment that have influenced the shaping of legislation on transgender healthcare. The Note discusses the current legal barricades for adolescents trying to access puberty blockers and then proceeds to suggest alternative routes to puberty blocker access should Arkansas Act 626 be upheld or even denied. Overall, the Note chooses to highlight how the personhood and dignity of transgender minors is on the line, and how decision-making autonomy should be afforded to minors in making decisions regarding the trajectory of the bodies they must inhabit
New Vision, Old Model: How the FTC Exaggerated Harms When Rejecting Business Justifications for Noncompetes
Get PDFThe Federal Trade Commission has rejected consumer welfare and the Rule of Reason—standards that drove antitrust for 50 years—in favor of a “NeoBrandeisian” vision. This approach seeks to enhance democracy by condemning abuses of corporate power that restrict the autonomy of employees and consumers, regardless of impact on prices or wages. Pursuing this agenda, the Commission has proposed banning all employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act.
The Notice of Proposed Rulemaking (“NPRM”) articulating the Commission’s rationale found that NCAs reduce aggregate wages, harm traditionally recognized by the Rule of Reason. But the NPRM also found that nearly all NCAs are both procedurally and substantively coercive, because employers use overwhelming bargaining power to impose agreements that restrict employees’ post-employment autonomy. The invocation of coercion as distinct antitrust harm reflected NeoBrandeisian concerns about corporate power in today’s economy.
Echoing Transaction Cost Economics (“TCE”), the NPRM conceded that NCAs can encourage employee training and/or creation of trade secrets. The Commission nonetheless rejected such business justifications for two reasons. First, these benefits do not exceed NCAs’ harms. Second, NCAs are not “narrowly tailored” because alternative, albeit less effective, means can further such objectives. Both rationales assumed that the benefits of nonexecutive NCAs always coexist with all three harms described above.
This Essay critiques the Commission’s assumption that NCAs’ benefits coexist with both forms of coercion and the resulting rejection of business justifications for NCAs. The coexistence assumption echoes Price Theory’s partial equilibrium tradeoff (“PET”) model, which informs the same consumer welfare standard the Commission has rejected. This model treats the creation of market power and resulting misallocation of resources as the sole antitrust harm, to be balanced against any productive efficiencies, which necessarily coexist with such harm.
However, the Commission’s NeoBrandeisian focus on coercion introduced a new form of antitrust harm, which entailed a particular process of contract formation, independent of any impact on prices or wages. Moreover, TCE teaches that, unlike efficiencies contemplated by Price Theory, efficiencies generated by NCAs are non-technological in nature and often arise in low transaction cost settings. Taken together, the altered definition of harm and TCE’s account of efficiencies undermine application of the PET model’s coexistence assumption when assessing business justifications for NCAs.
In particular, TCE predicts that fully-disclosed NCAs that produce significant benefits reflect voluntary contractual integration between the parties and are thus not procedurally or substantively coercive. Proof that such NCAs create benefits undermines the prima facie case of coercion and obviates any need to balance benefits against supposed coercive harms. The Commission’s assessment of business justifications and condemnation of all nonexecutive NCAs as coercive therefore rested upon an exaggeration of the harms that NCAs produce and may have reached an erroneous result.
To be sure, proof that some or even all NCAs are voluntary does not refute the findings that NCAs have an aggregate negative impact on wages. Perhaps this narrower set of harms still outweighs the benefits that NCAs produce. Or perhaps an assessment of “balanced alternatives” would still conclude that NCAs are on net inferior to alternatives. However, the NPRM performed no such assessment. As a result, the Commission must reconsider its rejection of business justifications, this time unconstrained by the inapposite PET model.
The Commission’s erroneous exaggeration of harms highlights the perils of abrupt and ill-considered normative change. The Commission developed its Section 5 enforcement policy without public input and ignored public comment and academic literature explaining TCE’s account of voluntary contract formation. Instead of adapting its methodology of assessment to its new normative account of Section 5, the Commission implicitly fell back on the PET model—developed to assess entirely different economic phenomena. The Commission should reconsider its new normative account of antitrust harm or revise its methodology of assessing business justifications to reflect the best economic account of the formation of NCAs