Note: Beating the Odds: The Public Policy of Drug Efficacy and Safety
By Noah Lewellen. Full text here. Decisions in the Supreme Court and, more recently, the Ninth Circuit have cast doubt on the role of statistical significance in drug development. In United States v. Harkonen, the defendant Harkonen was convicted of fraud for advertising successful testing of a drug when, in fact, the tests had not revealed…
Continue ReadingNote: Knowledge Is Power: How Implementing Affirmative Disclosures Under the JOBS Act Could Promote and Protect Benefit Corporations and Their Investors
By Laura A. Farley. Full text here. Benefit corporations are a new type of business entity that combine the notions of for-profit finances with the public and mission-based goals of non-profits, thus creating a unique business model that is just now gaining traction. Despite its popularity, the benefit corporation entity often faces financial difficulty because of…
Continue ReadingResurrecting Trial by Statistics
By Jay Tidmarsh. Full text here. “Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claims and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal…
Continue ReadingDuress as Rent-Seeking
By Mark Seidenfeld & Murat C. Mungan. Full text here. The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious…
Continue ReadingStructural Reform Litigation in American Police Departments
By Stephen Rushin. Full text here. In 1994, Congress passed 42 U.S.C. § 14141, a statute authorizing the Attorney General to seek equitable relief against local and state police agencies that are engaged in a pattern or practice of unconstitutional misconduct. Although police departments in some of the nation’s largest cities have now undergone this sort…
Continue ReadingWhen is HIV a Crime? Sexuality, Gender, and Consent
By Kim Shayo Buchanan. Full text here. HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception—including deceptions that…
Continue ReadingNote: Stimulating Dialogue Between the Courts and Congress: Sprucing Up the “Statutory Housekeeping” Project
By Jeff Simard. Full text here. Gluck and Bressman’s recent survey of legislative drafters suggests that judges who interpret and construe statutes are not on the same page as those who draft and revise them. This disconnect seems especially glaring in light of the rise of statute-based law and the increasing impact that judicial statutory interpretation…
Continue ReadingNote: Treating Adults Like Children: Re-Sentencing Adult Juvenile Lifers After Miller v. Alabama
By Brianna H. Boone. Full text here. Miller v. Alabama continued the trend in Supreme Court cases finding that juvenile criminal offenders are less culpable than adult offenders, by holding that states cannot sentence juvenile offenders to mandatory life without parole. The Court held that it is cruel and unusual punishment to sentence a juvenile to…
Continue ReadingNote: When Volunteers Become Employees: Using a Threshold-Remuneration Test Informed by the Fair Labor Standards Act To Distinguish Employees from Volunteers
By Emily Bodtke. Full text here. Despite the recognized importance of determining who is an “employee” for purposes of legal coverage, the concept remains unsettled. The confusion over how to define “employee” is now spreading to upset the boundary between employees and volunteers. As voluntarily unpaid workers increasingly bring lawsuits alleging discrimination under federal statutes, a…
Continue ReadingChoice-of-Law as Non-Constitutional Federal Law
By Mark D. Rosen. Full text here. Domestic choice-of-law is widely bemoaned for being a chaotic mess, with states using a half dozen different approaches. But if we praise ‘our federalism’ for allowing states to adopt divergent laws that best reflect their citizens’ distinctive values, why are different tort and family laws across states normatively acceptable…
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