Note: In re the Welfare of Due Process
By Kristin K. Zinsmaster. Full text here. The juvenile justice system is not the same as when it started. This Note argues that the juvenile court has become as punitive, as public, and as formalistic as the adult system from which it was supposed to differ. Furthermore, the modern juvenile court suffers from the precise problems…
Continue ReadingNote: Credit Rating Agencies and the First Amendment: Applying Constitutional Journalistic Protections to Subprime Mortgage Litigation
By Theresa Nagy. Full text here. The First Amendment should not protect credit rating agencies for their grossly inaccurate ratings of residential mortgage-backed securities. The rating agencies played a significant role in the subprime mortgage crash and resulting financial market crisis. In past litigation, rating agencies have been successful in defending lawsuits involving claims of inaccurate…
Continue ReadingWhy Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?
By Gerard N. Magliocca. Full text here. This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States. The analysis reaches three main conclusions. First, the opinion in the Slaughter-House…
Continue ReadingReconfiguring Estate Settlement
By John H. Martin. Full text here. Probate, the judicial process for settling a decedent’s estate, has been vilified and shunned for nearly five decades. Its cost, delay, and lack of privacy motivate the public and their advisors to utilize a multiplicity of title formats and alternative devices to transfer assets at death. For some time…
Continue ReadingAgainst Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs
By Richard A. Epstein. Full text here. Although the principle of personal autonomy is commonly accepted as the proper guide for health care decisions, that principle has been conspicuously absent in the area of drug regulation, where the FDA has the unquestioned power to keep drugs off the market if it deems them either unsafe or…
Continue ReadingNote: The Protective Scope of the Fair Debt Collection Practice Act: Providing Mortgagors the Protection They Deserve from Abusive Foreclosure Practices
By Eric M. Marshall. Full text here. The Fair Debt Collection Practices Act (FDCPA) is intended to provide consumers broad protection from abusive and harassing practices of debt collectors. However, courts disagree over whether mortgage foreclosure constitutes debt collection under the Act. Several circuit courts hold that mortgage foreclosure is debt collection under the FDCPA, but…
Continue ReadingNote: Deterring Fraud to Increase Public Confidence: Why Congress Should Allow Government Employees to File Qui Tam Lawsuits
By Barry M. Landy. Full text here. Contractor fraud against the government is rampant as contractors regularly inflate the cost of their services and overcharge the government for their work. The federal False Claims Act (FCA) is the government’s most successful litigation tool for combating fraud, resulting in recoveries of approximately $22 billion since 1986. Traditionally,…
Continue ReadingNote: Reconciling the Public Employee Speech Doctrine and Academic Speech After Garcetti v. Ceballos
By Darryn Cathryn Beckstrom. Full text here. In 2006, the Supreme Court held in Garcetti v. Ceballos that public employees are not entitled to First Amendment protection for speech arising from their official duties. The Court declined to address whether Garcetti’s holding applied to academic speech, and consequently, lower courts are unclear about whether academics employed…
Continue ReadingConcepts, Categories, and Compliance in the Regulatory State
By Kristin E. Hickman & Claire A. Hill. Full text here. Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that…
Continue ReadingFrom Exclusivity to Concurrence
By Mark D. Rosen. Full text here. In arguing that President Washington could not interpret a mutual defense treaty that potentially required America to join battle with France—but that only Congress could interpret the treaty on account of its power to declare war—James Madison reasoned that “the same specific function or act, cannot possibly belong to…
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