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Brief of Amici Curiae Corporate and Securities Law Experts: \u3cem\u3eCentral Maine Power Company v. Maine Commission on Government Ethics and Election Practices\u3c/em\u3e
Get PDFAmici submit this brief to share expertise on corporate governance and securities laws and practices that relate directly to the lower court’s narrow-tailoring analysis of the Maine statute at the center of this case. While all participating amici may not agree with every statement in the brief, all amici agree that the Act’s 5% equity ownership threshold is not arbitrary and that ownership of 5% or more of a U.S. entity’s equity by a foreign government or a foreign-government-influenced entity presents a foreign influence on the U.S. entity’s governance and decision-making
Brief of Children’s Rights Advocates in Support of Appellees: \u3cem\u3eHeld v. Montana\u3c/em\u3e
Get PDFAmici Curiae are members of the Consortium for the Advancement of Children’s Constitutional Rights and Healthy Mothers, Heathy Babies: The Montana Coalition who are children’s rights advocates and legal scholars. Amici submit this brief to: (1) highlight Montana’s Constitution as a leader in advancing children’s constitutional rights; (2) draw this Court’s attention to the Montana Constitution’s text and history recognizing children’s right to a clean and healthful environment; and (3) explain that a decision not to safeguard children’s right to a clean and healthful environment in reliance on adult-centric analytical missteps advanced by Appellants (and supporting Amici) would deny Montana’s children access to justice
Outsourcing Self-Regulation
Get PDFAnswerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private interest. By outsourcing the mechanisms that dictate admission to the bar, the legal profession has all but surrendered control of the most crucial component of its gatekeeping function to an unregulated industry that profits at the expense of those seeking entry.
The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. The manner in which state courts have fostered privatized bar admission brings into question whether the delegation of judicial power is consistent with Constitutional prerogatives. This Article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing an exclusive judicial power that is essential to the goals of self-regulation. This Article ultimately questions whether the legal profession has surrendered, or will soon lose, the ability to regulate itself. The Article concludes with multiple recommendations to reverse the directional flow of power in attorney licensure in a manner that will yield more transparency and public accountability
The Wild, Wild West of Laboratory Developed Tests
Get PDFSince the 1950’s, scientists have built novel technologies to screen for genetic diseases and other biological irregularities. Recently, researchers have developed a method called “liquid biopsy” (as opposed to a standard tissue biopsy) that uses a liquid sample (e.g., blood) to non‑invasively spot biomarkers indicating different types of cancers in the patient’s body. While the U.S. Food and Drug Administration (FDA) has fully cleared a small number of liquid biopsy tests under its rigorous and expensive review process, most biotech companies have instead followed a less restrictive regulatory path through the Centers for Medicare and Medicaid Services (CMS), which label the devices as “laboratory-developed tests” (LDTs).
Despite Congress’ initial passage of LDT designation in the 1980’s, LDT regulation remains akin to the “Wild West,” with ongoing questions about which agency is actually in charge of LDTs. While FDA initially claimed regulatory control over LDTs, it has (until recently) left discretion to CMS. Therefore, some unscrupulous companies have tried to abuse the gray regulatory area by marketing potentially misleading scientific claims about their LDTs, comparing them to FDA‑approved tests. Competitors with fully‑approved tests are furious and have sued under federal Lanham Act claims. Because of Congress’ repeated failures to pass a law addressing these claims and modernize the regulatory path for all in-vitro diagnostic tests, the FDA has proposed its own rules amending its regulatory authority to reign in most diagnostic tests.
This Note therefore suggests a multi-faceted approach to address the issue of regulating LDTs and their potentially misleading claims by (1) revising failed Congressional bills to allow regulatory and industry compromise, (2) applying certain circuit court decisions on Lanham Act claims to questionable facts in a company’s advertisements, and (3) narrowly expand the FDA’s regulatory power to all liquid biopsy tests before gradually expanding to all LDTs. Although LDTs may benefit the healthcare sector by offering novel tools to identify rare diseases, the federal government must develop an approach that both protects private parties and the general public and balances the need for research and development of life‑saving diagnostic tests
The Violence of Free Speech and Press Metaphors
Get PDFToday, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.
The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Perhaps unsurprisingly then, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds.
As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine.
No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how and provides examples of just what types of metaphors might work
Unfenced: The Fourth Circuit Gives Geofencing Its First Appellate Go-Ahead in \u3cem\u3eUnited States v. Chatrie\u3c/em\u3e
Get PDFIn United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the reasoning for the former holding in Carpenter entail that the latter is a search, too? I argue that the answer is no, unless Carpenter is given an ambitious interpretation. The court in Chatrie refused to go that far, and so held that the geofence at issue was not a search. I do not celebrate this result. Instead, I think it illustrates the limitations of Carpenter, doctrinally speaking, and the need to confront those limitations with eyes open
Legal Support for Local Election Officials
Get PDFLocal election officials (“LEOs”) face enormous pressure. They must administer elections when a wide swath of the American public has grown mistrustful of their work; they increasingly face ominous personal attacks and threats; they cope with chronic underfunding of elections; and they must navigate frequent changes in the law governing elections. Lawyers provide a critical avenue of support for local election officials. They provide guidance on how to implement legislative mandates and judicial orders; they anticipate and prevent disputes from arising; and they represent election officials when they or their offices are sued—a more common occurrence today than ever. Although lawyers are crucial to ensuring election officials (and thus elections) can function, legal support for election officials is seldom discussed. Do election officials have adequate access to competent legal counsel? Are lawyers guiding and representing local election officials knowledgeable about how elections work and the laws that govern them? How does the increasingly tricky political terrain complicate LEO access to legal support? This Essay aims to start this conversation and spur study of how lawyers support local election officials in their work. The premise of this Essay is that competent LEO legal support is critical to ensuring reliable, free, and fair elections
Till the Rivers All Run Dry: Equal Sovereignty and the Western Water Crisis
Get PDFAcross the United States, a countless number of people rely on groundwater for basic necessities such as eating, drinking, agriculture, and energy-creation. At the same time, overuse combined with increasingly dry conditions throughout the country, tied to the increasingly unpredictable and devastating impacts of climate change, threaten this fundamental building block of society. Nowhere is this problem more pernicious than the American Southwest. The Colorado River Basin has always been the epicenter of water disputes between communities and states. Bad policies, unhelpful federal actions, and sluggish Supreme Court decisions stop the painful but necessary steps to address the increasingly dire water shortage. At the center of this crisis are two opposing camps that stand to gain or lose much. California, with the weight of history is on one side, while Arizona and Nevada, often disadvantaged, occupy the other. Yet these underdog states may have a way to escape the unjust outcomes that have hounded them to this point. If Arizona and Nevada choose, recent Supreme Court decisions provide the ammunition needed to finally create a fair and equitable distribution of water in the Southwest, and break California’s oppressive control over the lion’s share of Colorado River Basin water
Corporate Crime and Cooperation
No full textOver the past few decades as the number of Foreign Corrupt Practices Act (FCPA) cases has steadily climbed, and the fines associated with FCPA dispositions have skyrocketed, the U.S. Department of Justice (DOJ) has regularly issued guidance about how companies could or should assist the government in reaching a resolution to an FCPA investigation. It is now taken as a given that a company will cooperate with the DOJ in order to receive the best outcome and settlement. What cooperation entails has differed over the past few decades, but what is no longer on the table is the option NOT to cooperate with the DOJ, or any parallel investigations by the U.S. Securities and Exchange Commission or even foreign regulatory agencies. The reason companies cooperate is to be afforded the carrot of cooperation credit, rather than face the stick of increased fines and punishment. Cooperation credit is a major factor in corporations\u27 decisions regarding all aspects of their own internal investigations, including whether to voluntarily disclose potential violations of the FCPA, what documents to produce to the government and when, and whether to allow the government to interview (and potentially indict) executives. The recent DOJ Memorandum issued by Deputy Attorney General Lisa Monaco doubles down on the notion that companies must be swift in voluntarily disclosing violations, quick to point fingers at executives involved, and must produce to the government potentially damning documents immediately upon discovery. The Monaco Memo seemingly moves the needle further in favor of the government; meaning, a company must do more to meet the standard of cooperation in order to be eligible for cooperation credit. As the standard for cooperation becomes harder to attain, more corporations may push back. The risk to the DOJ of making cooperation credit too elusive is that the DOJ likely does not have the resources to engage in full-scale investigations of companies. Rather, the government relies upon companies to voluntarily disclose violations and to perform internal investigations at their own expense. What then happens when companies refuse to cooperate? When the carrot becomes too elusive, will companies begin taking their odds with the stick? This Article outlines the historical underpinnings of corporate cooperation, and expands upon the literature considering the structural, constitutional, and normative issues with corporate cooperation