Volumes Category
The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Apr. 19, 2016—The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches ABSTRACT Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews...
Constitutionalizing Corporate Law
Apr. 19, 2016—Constitutionalizing Corporate Law ABSTRACT The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free...
Intrafirm Monitoring of Executive Compensation
Apr. 19, 2016—Intrafirm Monitoring of Executive Compensation ABSTRACT This Article argues that employees should serve as intrafirm monitors of executive performance and pay. Employees and shareholders, labor and capital, can monitor executive performance and pay at different levels. Diffuse, diversified, and short durational shareholders currently monitor performance and pay through the market mechanism of public disclosures and...
How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure
Apr. 19, 2016—How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure ABSTRACT For the past twenty years, the Supreme Court has charted a broader course for its state sovereign immunity doctrine, which immunizes states and their officers from suit. But while the Court has broadened the doctrine’s substantive elements, it has neglected how...
Bruton on Balance: Standardizing Redacted Codefendant Confessions Through Federal Rule of Evidence 403
Apr. 19, 2016—Bruton on Balance: Standardizing Redacted Codefendant Confessions Through the Federal Rule of Evidence 403 ABSTRACT In joint criminal trials, prosecutors are constitutionally barred from introducing the confession of a non-testifying defendant (a “declarant-defendant”) that inculpates other codefendants. In Bruton v. United States, the Supreme Court held that the wholesale introduction of the declarant-defendant’s confession would...
Finding “Tapia Error”: How Circuit Courts Have Misread Tapia v. United States and Shortchanged the Penological Goals of the Sentencing Reform Act
Apr. 19, 2016—Finding “Tapia Error”: How Circuit Courts Have Misread Tapia v. United States and Shortchanged the Penological Goals of the Sentencing Reform Act AUTHOR J.D. Candidate, 2016, Vanderbilt University Law School; B.A., 2009, New York University. This Note is the beneficiary of incredible support from my peers on the Vanderbilt Law Review. In particular, I wish...
The Right to Domain Silent: Rebalancing Tort Incentives to Keep Pace with Information Availability for Criminal Suspects and Arrestees
Apr. 19, 2016—The Right to Domain Silent: Rebalancing Tort Incentives to Keep Pace with Information Availability for Criminal Suspects and Arrestees AUTHOR J.D. Candidate, May 2016, Vanderbilt University Law School; B.A., 2011, New York University. I would like to thank Professor Alex Little for his help in sparking the idea that became my solution and his valuable...
Redundant Public-Private Enforcement
Mar. 21, 2016—Redundant Public-Private Enforcement ABSTRACT Redundancy is a four-letter word. According to courts and scholars, redundant litigation is costly, unfair, and confounding. Modern civil procedure has a (nearly) maximalist preference for centralization, and various rules seek to limit duplicative suits within and across court systems. This seemingly dominant view stands in marked contrast to the reality...
The Rise and Fall of Plausibility Pleading?
Mar. 21, 2016—Rise and Fall of Plausability Pleading? ABSTRACT The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, “plausibility pleading,” that upended the notice-pleading approach that had long prevailed in federal...
Regulation of Emerging Risks
Mar. 21, 2016—Regulation of Emerging Risks ABSTRACT Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must...
The Management of Staff by Federal Court of Appeals Judges
Mar. 21, 2016—The Management of Staff by Federal Court of Appeals Judges ABSTRACT Federal court of appeals judges have staffs consisting usually of a secretary and four law clerks; some judges have externs as well (law students working part time without pay). These staffs are essential, given judicial workloads and judges’ limitations. Yet not much is known about how the...
Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations
Mar. 21, 2016—Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking ABSTRACT When Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (“2008 TVPRA”), it included language criminalizing and creating civil liability for any person who “knowingly benefits, financially or by receiving anything of value, from participation in...
No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”
Mar. 21, 2016—No Clean Hands in a Dirty Business: Firing Squads and the Euphemism of “Evolving Standards of Decency” ABSTRACT When it comes to executions, “the enterprise is flawed.” While this statement from Judge Kozinski was chiefly concerned with the problems of lethal injection, it applies with equal force to America’s development of execution methods in general....
The Commensurability Myth in Antitrust
Jan. 15, 2016—The Commensurability Myth in Antitrust ABSTRACT Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much...
Incarceration Incentives in the Decarceration Era
Jan. 15, 2016—Incarceration Incentives in the Decarceration Era ABSTRACT After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration...
The Regulatory Contract in the Marketplace
Jan. 15, 2016—The Regulatory Contract in the Marketplace ABSTRACT For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract—a nineteenth-century concept that stands more...