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President Trump\u27s Big Beautiful Wall: Discrimination, Eminent Domain, and the Public Use Requirement
Get PDFAt a press conference held in Trump Tower New York City on June 16, 2015, Donald Trump announced his candidacy for President of the United States by promising to expand the border wall along the Southern United States. President Trump has insisted that his only reasons behind completely separating the United States from Mexico are to curtail illegal immigration and curb drug cartel activity, but many argue that his statements indicate a much more sinister motive based in racial discrimination. The public use requirement of the Fifth Amendment Takings Clause allows the federal government to take private land for the greater public benefit. While the public use requirement of the takings clause is incredibly broad, this note will argue that there can be no public use when the sole motivation behind a taking is racial discrimination. While there have been no direct cases involving the use of eminent domain for a solely discriminatory purpose, cases in other areas make it clear that such a purpose would run afoul of the public use requirement for failure to serve even a basic legitimate government interest. The Equal Protection Clause, specifically the lack of a legitimate government interest or the government’s bare desire to harm a particular group, are useful tools with which this note will analyze President Trump’s statements and opinions about the border wall and whether they are discriminatory in nature and therefore outside the realm of the public use requirement
The Internet Adopts Two-Way Radio
No full textThe Internet, having displaced conventional correspondence with email, having displaced traditional libraries with online ones, having revolutionized shopping, having uprooted television and movies, now is absorbing police, fire, ambulance, and public utility two-radio systems.Digital radio technologies combine with Internet switching of transmitters, receivers, and networks, so that a police officer can talk to an ambulance driver or a train dispatcher across the state or across the country. Specialized cellphones are becoming indistinguishable from walkie-talkies. Cellular telephone channels replace two-way-radio air links.Integration of “private mobile radio” into the Internet is the result of specific advances in radio and networking technology that now draw Congressional approval in FirstNet, which provides a framework for writing the specifications and selecting the vendors for a new first-responder network that ensures interoperability.This is occurring as the public switched telephone system converges with the Internet, so that the two no longer are separate or reflect different architectures.Public officials and stakeholders must be vigilant to ensure that this initiative does not unduly limit competition in the equipment market or impair ordinary civilian uses of the communications infrastructure
To 13(b) or Not to Be? How the Seventh Circuit’s Narrow Interpretation of Remedies Under Section 13(b) of the FTC Act Leaves the FTC Vulnerable
Get PDFThe Federal Trade Commission (“FTC”) has been the most efficient regulator of commerce for over a century. It serves as the primary line of defense against anticompetitive, deceptive, and unfair business practices. Between July 2017 and July 2018 alone the FTC obtained a total of 114 court orders totaling 2.3 billion in refunds to wronged customers. To continue obtaining such results and ensuring a fair marketplace, the FTC requires a broad range of enforcement powers. But key FTC enforcement powers under Section 13(b) of the FTC Act—the primary provision that the FTC uses to challenge fraud—has recently fallen under attack. Traditionally, and for over three decades, the FTC has had the ability to seek restitution awards under Section 13(b) even though the only remedies that are explicitly stated in the language of the statute are temporary restraining orders and injunctions. Courts have nonetheless implied that the FTC has the power to seek and obtain restitution awards from the language of Section 13(b). In FTC v. Credit Bureau Centers, a Seventh Circuit panel determined that the FTC is not entitled to an implied remedy of restitution under Section 13(b) of the FTC Act. This decision separates the Seventh Circuit from eight of its sister circuits and overturns the Circuit’s own thirty-year-old precedent. The Seventh Circuit strictly interpreted Section 13(b)’s text and found that an implied restitution remedy “does not sit comfortably” with recent Supreme Court precedent that advised against finding implied statutory remedies. A majority of the Seventh Circuit sitting en banc denied a rehearing of the case, and three judges penned a sharp dissent to that denial. The dissent illustrates the very real implications that follow this limitation of FTC enforcement power. The limitation offers “brazen scammers” a grant of immunity and leaves the FTC more vulnerable than ever before. The reasoning of the Seventh Circuit in Credit Bureau Centers should be rejected by other Circuit Courts, as it defies congressional intent at the time of the drafting of the FTC Act and belittles decades of sound precedent. To restore the breadth of FTC enforcement power following this decision, the Supreme Court should grant the FTC’s petition for certiorari in this case and reverse the decision of the Seventh Circuit
The Death of Moral Freedom: How the Trademark Dilution Act Has Allowed Federal Courts to Punish Subjectively-Defined Immoral Secondary Use of Trademarks
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The Regulatory Accountability Act and the Future of APA Revision
Get PDFThis article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that would provide for (1) trial-type hearings on certain issues in proceedings to promulgate especially consequential rules; (2) mandatory findings and analyses in all notice-and-comment rulemakings; (3) judicially enforced requirements for cost-benefit analyses in major rulemakings; (4) curtailment of Auer deference; and (5) substantial evidence review of some major rules. The article examines some of the policy and drafting problems with these latter provisions. It concludes with some reflections on reasons why the RAA proponents headed in unproductive directions and how the process of APA revision could be improved in the future
