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Symposium: A New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin’s “The Cycles of Constitutional Time”
Get PDFPolitically, we are living in dark times. Political polarization has increased over the past forty years, reaching an extreme and causing real damage to our political system and to our interpersonal lives. Americans are experiencing more hostility and anger towards their neighbors, family members, and fellow citizens with opposing political views. Growing distrust in government and intense polarization causally contributed to the 2016 presidential election of a populist demagogue whose appeals to toxic prejudices, racial resentment, and baseless fears were designed to exacerbate political and civil division. After he lost the 2020 election, a mob of his most ardent supporters attacked the United States Capitol harboring the delusional belief that the vote was somehow rigged and fraudulent
Regulations in Alcohol Advertising: Scrutiny Applied to Commercial Speech
Get PDFThere is a circuit split between the U.S. Court of Appeals for the Eighth and Ninth circuits concerning the level of scrutiny to apply to the regulation of alcohol advertising. The regulatory framework for the alcohol industry has a long and evolving history. Since our country’s founding, alcohol has had a strong presence in Ameri-can life, and it continues to enjoy a flourishing market. Knowing the alcohol industry’s history is important to understanding the current circuit split. The Twenty-First Amendment repealed Prohibition and gave states the power to regulate alcohol according to their own standards. The protections granted by the First Amendment have also evolved over time, especially concerning commercial speech within the alcohol industry
Insider Trading Under Sarbanes-Oxley: Bypassing the Personal Benefit Test
Get PDFInsider trading is broadly defined as the use of material nonpublic information in connection with the trade of stock or other securities. To the average person, the classic case of insider trading is a corporate executive reaping handsome personal profits by trading stock using insider information that he obtained through his position within the corporation. The reality, however, can be much more complicate
Redefining “Amend”: For the “Better” of Whom?
Get PDFIn Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace, LLC, the Supreme Court of Missouri overturned eighty years of legal precedent regarding the ability of homeowners to amend residential subdivision agreements to place further burdens on the use of real property. The court established that subdivisions can now increase the burdens on their lot owners, provided that the minimum number of owners, as required by the amendment provision in the subdivision indentures, support the new restriction. The court’s holding signifies a shift away from the traditional principle that a covenant authorizing a requisite majority of owners to “amend” or “modify” a residential subdivision’s set of restrictions does not permit the adoption of new burdens. It thus undermines Missouri’s policy of promoting “the free use of property unless property owners have voluntarily and unambiguously surrendered their rights.” By allowing “amend” to mean “add,” the court has opened the door to homeowners’ associations imposing additional prohibitions on a lot owner’s use of property; this should be a cause for concern in a state that has staunchly protected “the free and untrammeled use of real property
Qualified Immunity Creates Nearly Insurmountable Protection for Defendants Against First Amendment Retaliatory Claim
Get PDFThere are more than 3,000 sheriffs’ departments in the United States with varying authority based on the state and county in which they are located. Their authority may be as wide reaching as a “full-service countywide law enforcement agenc[y]” or may be as limited as having “no law enforcement jurisdiction in county areas served by local or municipal police departments.” Dissimilar to other law enforcement officials, who are hired after an interview and application process, most sheriffs gain their positions through partisan elections. Offices in forty-one states – more than 2,700 counties – conduct partisan elections for the sheriff position
On the Cusp of the Next Medical Malpractice Insurance Crisis
Get PDFMedical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.How can profits be in peril if claims have dwindled and payouts are historically low?Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be
The Paradox of Exclusive State-Court Jurisdiction over Federal Claims
Get PDFStanding doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.This paradox arises at the intersection of three distinct areas of doctrine:(1) a newly sharpened requirement of concrete injury under Article III that bars a wide swath of federal claims from being brought in federal court;(2) a general presumption that state courts can decide federal claims; and(3) the fact of our federalism that states are free to define the jurisdiction of their own courts, including by rejecting federal standing doctrine, as many states do.At the confluence of these factors lies the unintended consequence that standing doctrine is shifting claims arising under important swaths of the United States Code to the sole jurisdiction of state courts. This is perplexing because the literature teaches that federal courts have an essential role to play in the adjudication of federal claims, and Congress has assigned an ever-expanding set of federal claims to the original jurisdiction of federal courts. This paradox also threatens to undermine one of the key benefits of federal law itself - uniform, nationwide standards - by rendering federal law a patchwork quilt of enforceability, subject to the vagaries of state law. And it threatens to transform Article III’s limitation of the judicial power into a limitation on legislative power, committing a category error about the role that Article III plays in the structural constitutional order.Yet despite these grave costs, this paradox resists easy solutions. Each possible resolution bumps up against some important principle of our federal judicial system: legislative supremacy, the distinction between jurisdiction and merits, the limitation of the federal judiciary to deciding actual controversies, the distinct sovereignty of the states, and the supervisory power of the Supreme Court over questions of federal law. The paradox therefore highlights the unintended consequences and hidden trade-offs of novel jurisdictional limitations given the interlocking nature of our judicial federalism. Its resolution becomes a mirror into one’s commitments as between the values of federalism, separation of powers, and the purpose of federal law
The Populist Backlash to Gender Equality in International For a: Analyzing Resistance & Response at the United Nations
No full textIs New York’s Mark-to-Market Act Unconstitutionally Retroactive?
No full textIt is well known in tax literature that rudimentary tax planning strategies enable wealthy individuals to avoid state and federal income tax on much of their true economic income. Indeed, the existing income tax has been described as being effectively optional for those who derive their income chiefly from the ownership of assets rather than the provision of services. The reason is — except for a few relatively narrowly tailored deemed-realization rules — both state and federal income taxes rely on the realization principle. Under realization accounting, taxpayers generally do not owe tax on economic gains until they sell their appreciated assets. Moreover, this is so even when taxpayers fund lavish lifestyles by borrowing against their appreciated assets
The Odious Intellectual Company of Authority Restricting Second Amendment Rights to the “Virtuous”
Get PDFTo the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.
The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article shows that reliance on this theory is discredited outside the context of the Second Amendment. Modern reliance on the theory, outside the context of firearms rights, has been very infrequent and has been used to validate odious statutes, in cases no longer good law.
The unsound judicial effort to derive the validation of these firearms bans from Founding-Era firearms restrictions builds on erroneous premises. The Founding-Era restrictions, detailed in this article, were tailored to the circumstances and do not provide a foundation for the broad, essentially permanent bans that federal law provides and that courts typically validate