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The Historical Regulation of Intoxicated Firearms Possession and Carry: A Response to F. Lee Francis’s Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen
Full text linkRecently, the Marquette Law Review published Armed and Under the Influence: The Second Amendment and the Intoxicant Rule After Bruen by Professor F. Lee Francis. In that article, Professor Francis provocatively argues that the Second Amendment protects the right of intoxicated people to carry guns in public. Francis argues that, under the history-focused framework for deciding Second Amendment cases laid out by the Supreme Court in Bruen, there is an insufficient historical tradition to support prohibiting intoxicated people from carrying arms in public. Francis is wrong about the historical tradition. The historical tradition of regulating the intersection of guns and alcohol, the tradition of regulating intoxication and substance abuse generally, and the broader tradition of prohibiting dangerous people from possessing firearms all provide historical support for the constitutionality of modern prohibitions on intoxicated people carrying and using firearms.
This Article will critique Francis’s article in three ways. First, Francis fails to acknowledge the full scope of the historical regulation of intoxicated people carrying firearms, which was extensive, especially during the mid-to-late- nineteenth century, the period that is most relevant to the Second Amendment analysis of state laws. Second, Francis’s article fails to grapple with the ubiquitous general prohibition on public intoxication, which existed during the Founding Era and for much of American history. Third, Francis’s article fails to address the historical tradition of prohibiting firearms possession by those who, like intoxicated people, posed a danger to themselves or others. All three of these traditions provide strong support for the constitutionality of prohibiting firearm possession by intoxicated individuals
Vulnerable Consumers Left Behind in the Overdraft Fee Saga
No full textAttention on the arguable pervasiveness of overdraft fees has
been increasing in recent years. Overdraft programs were originally
offered to banks’ trusted, high-dollar customers on a discretionary
basis. Technology brought about debit cards and electronic payment
methods along with direct deposit and enhanced the complexity of
processing transactions. Some practices increased the likelihood of
overdrafts. For example, reordering transactions such that they post
to the account from the largest to smallest dollar amount received
distinct scrutiny—and is discouraged by regulators. Today, the majority
of overdraft fees are paid by economically disadvantaged, vulnerable
consumers; more specifically, by Black and Hispanic consumers.
The cycle of poverty and historical racial inequities in
financial institutions likely contribute to this pattern. However, there
is evidence that some consumers expect overdraft fees and utilize
overdraft programs as a cheaper form of short-term credit. Access to
short-term credit is crucial for many Americans living paycheck-to-paycheck,
so it is important that they have clear and accurate information
about their options. Banks provide several disclosures at account
opening and it is not feasible to do away with overdraft fees
altogether. The Consumer Financial Protection Bureau recently proposed
a rule that would limit overdraft fee revenue for very large
financial institutions, and there is recently proposed legislation that
would amend the Dodd-Frank Act’s enforcement mechanism. This
Article discusses some potential implications of these actions, concluding
that while both approaches are interesting steps, there are
other considerations that should be proactively reviewed to avoid
further harm to vulnerable consumers
The Game, the Players, and the Board
Full text linkChristopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? In this Response, I argue that the answer is a little bit of both. Whereas prior scholarship has shown the lack of an active role for IP in developing products, Seaman and Tran’s fascinating case studies suggest that IP plays a critical passive role in providing breathing space for innovations. But the example of tabletop games demonstrates that not every aspect of innovative creations—not even the most important aspects—necessarily require IP protection to be successful
Willfully Forgetting Miranda\u27s True Nature: Vega V. Tekoh Severs the Warnings Requirement From the Constitution
Full text linkThis Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that
a violation of Miranda was not a violation of the Fifth Amendment privilege
against self-incrimination. This Article examines the original language of the
Miranda opinion, the statements and intentions of the members of the Miranda
Court, and subsequent precedent to determine Miranda’s true nature. Further,
this Article examines the reasoning of Vega and the dangers created by its
pronouncements, especially in light of the Court’s earlier characterization of
Miranda as a constitutional rule in Dickerson v. United States. This Article
asserts that the Justices who joined the Miranda opinion clearly and repeatedly
explained that Miranda’s warnings requirement was a constitutional right.
Further, Miranda itself indicated that it was establishing a right included within
the Fifth Amendment privilege against self-incrimination. Finally, this Article
suggests that Vega’s cramped reasoning rejecting Miranda’s constitutional
status, along with the Court’s inconsistent interpretation of Miranda over the
decades, has not only fatally weakened Miranda’s warnings requirement but
also undermined the Court’s own authority
Duties Regarding Duties
Full text linkCorporate directors are subject to the fiduciary duties of care and loyalty
in the discharge of their responsibilities. The demands of these duties, from
their precise contours to their application under a particular set of
circumstances, is oftentimes far from obvious.
In order to properly fulfill their duties of care and loyalty, corporate
directors necessarily depend upon corporate counsel: specialized attorneys,
whether in-house or external to the corporation, retained to advise and
represent the corporation. As attorneys, corporate counsel are themselves
subject to a wide array of professional responsibilities, ranging from the
exhortations of codes of ethics to duties the breach of which could result in a
finding of malpractice. These responsibilities can themselves be ambiguous
when brought to bear upon specific situations, and hence the advent of the field
of legal ethics, and the phenomenon of experts therein.
This Article explores the potentially perilous confluence of these two sets of
obligations in the person of a corporation’s general counsel. For it is,
ultimately, the general counsel of a corporation, that specialist of specialists,
with whom rests the duty to advise board members of their duties. This Article
articulates what this duty entails and, informed by a 2022 survey of general
counsel, sets forth suggested best practices to be adopted in order to confidently
discharge it
