VOLUME 168, ISSUE 2 JANUARY 2020

Articles

Prejudice‐Based Rights in Criminal Procedure

Justin Murray

This Article critically examines a cluster of rules that use the concept of prejudiceto restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights.I focus, in particular, on outcome-centric prejudice-based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case…

Avoidance Creep

Charlotte Garden
At first glance, constitutional avoidance—the principle that courts construe statutes to avoid conflict with the Constitution when possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent.Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.”

Federalism, ERISA, and State Single‐Payer Health Care

Erin C. Fuse Brown & Elizabeth Y. McCuskey

While federal health reform sputters, states have begun to pursue their own transformative strategies for achieving universal coverage, the most ambitious of which are state-based single-payer plans. Since the passage of the Affordable Care Act in 2010, legislators in twenty-one states have proposed sixty-six unique bills to establish single-payer health care systems. This paper systematically surveys those state legislative efforts and exposes the federalism trap that threatens to derail them: ERISA’s preemption of state regulation relating to employer-sponsored health insurance.

Comments

Catch Rule 22: When Interpleader Actions Violate Statutory and Constitutional Diversity Jurisdiction Requirements

Kristen DeWilde

Since the time of the Founding, actions in strict interpleader have allowed parties in possession of a fund or other asset to sue claimants who have competing claims to that asset. The party in possession of the asset or stake, also referred to as the “stakeholder,” has no ownership interest itself. Instead, it seeks only to hand off the stake to the rightful party and avoid any future liability.

“Best” Interests and “Bad” Parents: Immigration and Child Welfare Through the Lens of SIJS and Foster Care

Ellyn Jameson

At first glance, the immigration system and the domestic child welfare system may appear to be worlds apart, but in fact they have much in common and often overlap. This Comment offers a targeted look at a particular process within the U.S. immigration system, Special Immigrant Juvenile Status (SIJS), and how it intersects with and parallels the domestic foster care system.

VOLUME 168, ISSUE 1 JANUARY 2020

Articles

The Faith of My Fathers

John Q. Barrett

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson’s writing about religion in his life.

The New Titans of Wall Street: A Theoretical Framework for Passive Investors

Jill Fisch, Assaf Hamdani & Steven Davidoff Solomon

Passive investors—ETFs and index funds—are the most important development in modern-day capital markets, dictating trillions of dollars in capital flows and increasingly owning much of corporate America. Neither the business model of passive funds, nor the way that they engage with their portfolio companies, however, is well understood, and misperceptions of both have led some commentators to call for passive investors to be subject to increased regulation and even disenfranchisement. Specifically, this literature takes a narrow view both of the market in which passive investors compete to manage customer funds and of passive investors’ participation in the capital markets.

Anti‐Libel Injunctions

Eugene Volokh

An injunction against libel, backed by the threat of prosecution for criminal contempt, is like a miniature criminal libel law—just for this defendant, and just for statements about this plaintiff. That is its virtue. That is its danger. And that is the key to identifying how the First Amendment and equitable principles should constrain such injunctions.

From the 1960s to the 1990s, libel was conventionally understood to be controlled (to the extent that it can be controlled) by the threat of civil damages. Criminal libel was seen as an anachronism. Injunctions against libel were seen as unavailable. Many still assume this is so.

Startup Governance

Elizabeth Pollman

Although previously considered rare, over three hundred startups have reached valuations over a billion dollars. Thousands of smaller startups aim to follow in their paths. Despite the enormous social and economic impact of venture-backed startups, their internal governance receives scant scholarly attention. Longstanding theories of corporate ownership and governance do not capture the special features of startups. They can grow large with ownership shared by diverse participants, and they face issues thatdo not fit the dominant principal-agent paradigm of public corporations or the classic narrative of controlling shareholders in closely held corporations.

Comments

The Amorphous Student‐University Contract: Origins, Development, and the Need For State Oversight

Sam McHale

Let’s make a deal. You pay me $200,000 for a four-year experience with no guarantee you will enjoy it or profit from it. During those four years, you are bound by the rules I write—and I may change them unilaterally and without notice. This deal must be accepted as is; there shall be no negotiating terms. If you don’t make this deal, you will likely be consigned to minimum wage work. Should you challenge in court any action I take, a judge will apply existing caselaw that instructs him or her to defer to my specialized judgment and my interpretation of the agreement. Do we have a deal?

Reviewing Refusal: Lethal Injection, the FDA, and the Courts

Andrew Shi

Most death row inmates today face execution by lethal injection through a series of compounded lethal drugs. However, this lethal injection method has only become standard practice within the last decade. Traditionally, state correctional facilities conducted executions using manufactured drugs, which national pharmaceutical companies produced at industry-grade standards. Starting in 2010, states began running out of manufactured drugs when pharmaceutical companies placed distribution restrictions on such drugs to ensure that states could not obtain the drugs for use in lethal injections. Furthermore, a court order effectively blocked foreign imports of a misbranded drug that several state correctional departments had turned to for lethal injections. This drug shortage crisis caused states to settle for a solution that would allow lethal injection to continue uninterrupted: sourcing drugs from local compounders.

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