Volume 41, Number 4


THE NEW RACIAL JUSTICE: MOVING BEYOND THE EQUAL PROTECTION CLAUSE TO ACHIEVE EQUAL PROTECTION

Emily Chiang

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success. It expands upon and refines the strategy shift some scholars have identified, with a particular focus on racial inequality, the foundation on which equal protection rests. It does so by focusing on three particularly timely reform movements: indigent defense reform, the fight to end the school-to-prison pipeline, and challenges to immigration-related laws. The Article uses these various reform movements to identify and analyze the true breadth of the new racial justice reformers have wrought.
Read Article

 

NATIONAL SECURITY RULEMAKING

Robert Knowles

This Article suggests reforms that would increase public deliberation in national security rulemaking, while accounting for the importance of secret-keeping when truly necessary. Among these proposed reforms is a change to the current practice allowing national security agencies to invoke the security exception to notice-and-comment after a rule is challenged in court, rather than at the notice-and-comment stage itself. These reforms would improve the current rulemaking practice, which undermines the transparency necessary for effective democratic participation.
Read Article

 

RAISING THE FLOOR OF COMPANY CONDUCT: DERIVING PUBLIC POLICY FROM THE CONSTITUTION IN AN EMPLOYMENT-AT-WILL ARENA

Steven J. Mulroy, Amy H. Moorman

Consider an employer that requires all employees to attend rallies for a particular presidential candidate, or to sign petitions supporting that candidate, or to lobby government for a particular position. Employees who fail to comply are subject to denial of bonuses, postponement of promotions, or even termination.
Read Article

 

MAKING ROOM FOR COOPERATIVE INNOVATION

Liza S. Vertinsky

Patent law, created in response to a constitutional mandate to encourage innovation, may be discouraging important forms of cooperative innovation. Advances in technology have enabled new ways of pooling knowledge and computational capabilities, facilitating cooperation among many participants with complementary skills and motivations to collectively solve complex problems. But emerging models of cooperative innovation increasingly run into patent roadblocks.
Read Article

 

AGGREGATING DEFENDANTS

Greg Reilly

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and Bit-Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation—avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation?
Read Article

 

IMPAIRED PHYSICIANS AND THE SCOPE OF INFORMED CONSENT: BALANCING PATIENT SAFETY WITH PHYSICIAN PRIVACY

Sarah Haston

A thirty-eight-year-old orthopedic surgeon comes home to his empty house following a typical ten-hour day at the hospital. Recently divorced and without children, he drops his keys at the front door and heads towards the living room with the take-out dinner he picked up on his way home. He turns on the news and pours himself a glass of red wine. Ever since his divorce, he has been drinking wine more frequently than he used to, perhaps to mask his loneliness. After his third or fourth glass of wine, he turns off the television, brushes his teeth, and goes to bed.
Read Article

 

DURBIN AMENDMENT TO THE DODD FRANK ACT: TWO CAPS ARE BETTER THAN ONE FOR DEBIT CARD INTERCHANGE FEES

Maureen Kane

Ignorance is not always bliss. Every day in the United States, there are over one hundred million debit card transactions completed to purchase goods or services; however, most consumers do not know or even care how they work–they just care that they work. This ignorance allows the card-issuing banks to charge “hidden” fees, known as interchange fees. Every time a debit card is swiped, fees are deducted from the amount taken out of the consumer’s bank account, and the remainder is deposited into the merchant’s bank account. Since, normally, neither merchants nor consumers are fully aware of the exact cost of the debit card interchange fees, the card issuing bank can abuse these fees. Even though merchants are aware of the fees, they likely will not stop accepting debit cards because they need to remain competitive in the market, and because consumers want and expect to be able to use them.
Read Article

 

CONSEQUENCES TOO HARSH FOR NONCITIZENS CONVICTED OF AGGRAVATED FELONIES?

Erica Steinmiller-Perdomo

The Immigration and Nationality Act of 1952 (INA) largely governs the body of law regulating immigration in the United States. Provisions of the INA describe classes of noncitizens who are inadmissible and removable, including any noncitizen who is convicted of an aggravated felony defined by the statute. The definition of “aggravated felony” encompasses a range of offenses from very serious to relatively minor offenses and imposes harsh consequences for a noncitizen convicted of qualifying crimes. Some recent U.S. Supreme Court decisions acknowledge the harshness of these consequences and are encouraging a more narrow reach for this term, setting the stage for Congress to revisit the aggravated felony definition.
Read Article