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Searches Without Suspicion: Avoiding a Four Million Person Underclass
Get PDFIn Samson v. California, the Supreme Court upheld warrantless, suspicionless searches for parolees. That determination was controversial both because suspicionless searches are, by definition, anathema to the Fourth Amendment, and because they arguably undermine parolees’ rehabilitation. Less attention has been given to the fact that the implications of the case were not limited to parolees. The opinion in Samson included half a sentence of dicta that seemingly swept probationers into its analysis, implicating the rights of millions of additional people in the United States. Not only is analogizing parolees and probationers not logically sound because the two groups differ in important respects, but the Court made this proclamation without any briefing on whether it is constitutional or practically advisable to treat probationers’ rights in the same restrictive way as the Court ultimately determined was appropriate for parolees. Such preemptive behavior by the Court is contrary to well-established norms of jurisprudence, and for good reason: the resulting extemporaneous half-sentence addressing the rights of probationers has created considerable uncertainty as to its precedential power, and the circuits have since applied the decree in disparate ways. We argue that the substantial differences between probationers and parolees make the extension to probationers flawed. Permitting warrantless, suspicionless searches of probationers defeats the rehabilitative purpose of probation, risks creating an underclass of millions of people, and is likely to particularly harm already marginalized communities. Finally, there is no limiting principle to the Court’s logic, and so its inclusion of probationers may be a slippery slope to undermining the rights of many others
Reclaiming Humphrey’s Executor: Expertise and Impartiality in the FTC
Get PDFThe commissioners of the Federal Trade Commission (FTC) sit just beyond the president’s removal power, for now. The U.S. Supreme Court has all but overruled Humphrey’s Executor, which declared the constitutionality of the FTC’s statutory protections from at-will presidential removal. Recent rulings in Seila Law, Free Enterprise Fund, and Collins held that restrictions on the president’s removal of various government agency officials are unconstitutional. Despite these cases, the Court has not directly overruled Humphrey’s Executor, and in theory, its precedent still provides the FTC commissioners with protection from the president’s removal power. However, the modern FTC is easily distinguishable from the 1935 FTC described in Humphrey’s Executor. Congress originally justified the FTC’s independence on the basis that the commission was to be uniquely expert and non-partisan. If the FTC wishes to retain the precedential effect of Humphrey’s Executor then the FTC must reclaim the congressional vision described in Humphrey’s Executor. The Commission’s appointees must exhibit FTC subject-matter expertise. Once appointed, the Commissioners must see their seven-year tenure through to the end despite shifts in government politics, and they must take care to ensure that their rhetoric and other actions do not ruin the perception of political impartiality that the founding Congress sought to create. By reclaiming these principles of expertise and impartiality, the FTC’s character will more closely resemble what Congress intended when it was established over a century ago and be more likely to survive future scrutiny from the judiciary
MANUEL LOPEZ, Petitioner/Appellant, v. ORWELL PRECAST; WORKERS COMPENSATION FUND,Respondents/Appellees
Get PDFBRIEF OF APPELLANT Appeal From Labor Commission - Appeals Boar
Corporate Purpose and the Separation of Powers
Get PDFDespite its intense focus on inter-jurisdictional competition, corporate law scholarship has thus far overlooked the influence of inter-branch competition on business organizations. This Article shows how interbranch struggles for control over corporations catalyzed the advent of modern corporate law and helped propel Delaware to its dominant position in the market for corporate charters. For centuries, the legislature, judiciary, and executive vied for the decisive role in dictating the means and ends of corporations. Through the nineteenth century, competition among the branches produced a dysfunctional and volatile relationship between government and private enterprise, with each branch successively assuming a leading role in corporate oversight, only to falter under the weight of its unique structural limitations. The resulting instability ultimately proved so intolerable as to prompt the creation of an entirely new paradigm of liberalized corporate codes at the dawn of the twentieth century. Delaware’s innovation of and rigorous adherence to corporate law’s newfound separation of powers gave it a crucial, yet previously unappreciated, edge in the competition for corporate charters. Moreover, modern corporate law’s system of checks and balances curbed longstanding abuses and ushered in an equilibrium among the branches that has served as a foundation for economic growth in the United States since. Beyond illuminating a novel factor in Delaware’s ascendency, corporate law’s separation of powers poses unappreciated problems and provides preliminary solutions for the ongoing debate over corporate purpose. A growing chorus of progressive academics and policymakers has called on the government to impose and enforce corporations’ social obligations. This Article offers new grounds for skepticism towards these proposed reforms because they would jeopardize corporate law’s hardfought equilibrium among the branches by reviving the unilateralism and dysfunction that once plagued the United States’ corporate law regime. Accordingly, this Article contends that vesting the government with a proactive role in imposing and enforcing corporate purpose, whether at the state or federal level, is ill advised. Yet this Article also provides reform-minded progressives with a concrete framework for structuring an expanded power to enforce corporate purpose with minimal risk to corporate law’s separation of powers
The Case of the Smart City
Get PDFJanuary 7, 2021, marked the seventy-fifth anniversary of Marsh v. Alabama, the case in which the Supreme Court of the United States extended the protections of the First and Fourteenth Amendments to a privately held “company town.” This article makes the case that the longstanding Marsh precedent, and the basic jurisprudential framework it set out, remain important in working through twenty-first century problems regarding public-private partnerships and their impact on constitutional rights. We bring this old ruling into our new century by extrapolating a hypothetical legal controversy from legislation currently under consideration in the states. Thus, the heart of our analysis involves an imagined case (and the resulting, imagined judicial opinions) arising from a potential bill that has not yet become law. This speculative approach is an effective way to think through, in advance, stubborn and emergent questions about the constitutional nature and limits of private actions that emulate government functions
Clark Memorandum: Spring 2022
Get PDFGeneral Joseph Smith and His Candidacy for the Presidency of the United States Leadership Lessons from the Life of Dallin H. Oaks Flunking the Founding Seven Lessons from the Life of Rex Leehttps://digitalcommons.law.byu.edu/clarkmemorandum/1070/thumbnail.jp
