Although the law of bribery may look profoundly underinclusive, the push to expand it usually should be resisted. This Article traces the history of two competing concepts of bribery—the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, when applied to officials other than unelected judges, “intent to influence” is now an untenable standard. This standard cannot be taken literally. This Article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. This Article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. This Article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past sixty years have given us better government.
In recent years, Foreign Corrupt Practices Act (FCPA) enforcement has become a top priority for the U.S. government, and government enforcement officials have stated that “we in the United States are in a unique position to spread the gospel of anti-corruption” and that FCPA enforcement ensures not only that the United States “is on the right side of history, but also that it has a hand in advancing that history.”
However, the FCPA is not the only statute in the federal criminal code concerning bribery. Rather, the FCPA was modeled in large part after the U.S. domestic bribery statute, and when speaking of its FCPA enforcement program, the government has recognized that it “could not be effective abroad if we did not lead by example here at home.” Indeed, the policy reasons motivating Congress to enact the FCPA—that corporate payments were subverting the democratic process, undermining the integrity and stability of government, and eroding public confidence in basic institutions—apply with equal force to domestic bribery.
Against this backdrop, this Article explores through various case studies and examples whether the United States’s crusade against bribery suffers from uncomfortable truths and double standards. Through these case studies and examples, readers can decide for themselves whether the U.S. government “practices what it preaches” when it comes to the enforcement of bribery laws and whether the United States is indeed “in a unique position to spread the gospel of anti-corruption.”
Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age.
In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement—whether voluntary or compelled—as a Fourth Amendment search.
The argument develops in three parts. Part I demonstrates that the Court has already identified two settings—if only implicitly—where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense—normatively, or even semantically—to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question.
Congressional amendments to the immigration code in the 1990s significantly broadened grounds for removal while nearly eradicating opportunities for discretionary relief. The result has been a radical transformation of immigration law. In particular, the constriction of equitable discretion as an adjudicative tool has vested a new and critical responsibility in enforcement officials to implement rigid immigration rules in a normatively defensible way, primarily through the use of prosecutorial discretion. This Article contextualizes recent executive enforcement actions within this scheme and argues that the Obama Administration’s targeted use of limited enforcement resources and implementation of initiatives such as Deferred Action for Childhood Arrivals reflect defensible efforts to systematize equitable decision making principles within the new world of American immigration law.
Having laid bare the practical realities of the modern immigration system, this Article then argues that reliance on executive discretion alone has thus far failed to ensure that individuals are deported only when justified. Of particular importance, the Department of Homeland Security under the current administration has all but abandoned any consideration of the normative merits of removal when it comes to noncitizens with any kind of criminal history. Indeed, the agency has used criminal history as an indiscriminate marker of undesirability, regardless of the seriousness of the underlying offense, the passage of time, the permanent resident status of the noncitizen, the severity of hardship that deportation would cause for the noncitizen’s family, and any other mitigating factors. A deportation system that allocates all responsibility for fairness and proportionality to enforcement actors raises other problems as well, including lack of finality and heightened risk of conflict with other branches and levels of government. These difficulties in turn can stymie the use of enforcement discretion as an effective equitable tool.
The situation cries out for legal redress. The reinvigoration of adjudicative discretion and rollback of overly broad removal grounds through statutory reform are goals well worth pursuing, and this Article describes important measures that lawmakers might take toward those ends. In the absence of congressional intervention, there remain important steps the Executive could take to help ensure the proportionality and fairness of the deportation system, despite the drawbacks of enforcement based equity. This Article concludes by suggesting that if neither of the political branches takes adequate steps to address this new set of problems, it will be left to the federal judiciary to increase structural opportunities for equitable consideration through closer regulation of the modern deportation system.
Iraq is paying off debt from Saddam Hussein’s rule. South Africa is
paying off debt obligations incurred under apartheid rule. Argentina is
renegotiating debts that can be traced back to a de facto military-civilian
regime that was ousted in 1976. There are numerous examples in which
sovereigns are paying off debts that previous governing regimes incurred
while oppressing their citizens. Should sovereigns be obligated to pay these
debts? Were the debts really incurred by the sovereign or were they
incurred by the governing regime in question? What if the lender knew in
advance what the proceeds would be used for?
The doctrine of odious debt seeks to resolve this dilemma. It proposes
that sovereigns should not have to pay back debts that were incurred
without the consent of the people and for purposes that do not benefit the
people, provided that the lender was aware of each of these conditions. The
doctrine itself is almost a century old, but sovereigns have yet to embrace it
due to fear of the repercussions. Scholars have proposed ex ante and ex
post mechanisms to apply the doctrine, but none have been accepted to
date. This Note proposes a unique solution that seeks to identify odious
expenditures before debt proceeds are entirely exhausted by a regime,
providing a remedy that falls between the traditional ex ante and ex post
Local boards of health often issue regulations that have broad effects
that surpass the borders of the city or county to which they apply.
Promulgation of such rules by board of health members appointed by the
executive branch implicates separation of powers concerns; because such
regulations may so extensively burden a locality’s citizens, it may be more
appropriate for elected officials to adopt these regulations. Indeed, local
businesses or other interested parties often bring suit challenging local
board of health actions. Courts apply different analytical methodologies to
review these challenges, which often leads to incongruent local health
agency discretion for different boards in different states—or even between
different local boards in the same state.
This Note suggests that the above concerns implicitly affect how courts
assess local board of health action. Based on an examination of four local
boards of health and their relationships with their local and state
governments, this Note posits that there are three factors that courts and
policymakers should examine when assessing the parameters of a local
board of health’s regulatory discretion: the locality’s history, the locality’s
government structure, and the locality’s politics. By taking into account
these three factors before applying traditional doctrines of local agency
review—including nondelegation, preemption, or Dillon’s Rule—courts
may be better positioned to decide which of these doctrines should apply.
In conducting this analysis, this Note also furthers the understanding of the
place local boards of health hold in the grander struggle between local and
Imagine you invented a way to perform mathematical calculations all
over the world simultaneously. Now, imagine that you cannot patent your
invention because it was compared to, and found to contain, the same idea
as an abacus. This scenario was the outcome of Alice Corp. v. CLS Bank
In coming to its decision in Alice, the U.S. Supreme Court adopted a
two-part test that it had previously utilized to analyze the patentability of
laws of nature to determine whether the patent at issue met the subject
matter patentability standards of § 101 of the Patent Act. Determining the
claim contained an abstract idea, the Court then addressed whether the
invention was a patentable application and found it was not because
“generic” computer implementation did not add “significantly more” to the
Since Alice, courts have invalidated a number of patents for failing to
meet this criteria—arguably turning from the plain meaning of the Patent
Act and congressional intent. Utilizing the Alice framework, courts have
dismissed patent infringement claims in the pleading stages upon labeling
them as abstract and citing reasoning as well as utilizing terminology that
is more indicative of a § 102 or § 103 Patent Act analysis. While an
argument can be made that proactively dismissing some claims in the
pleading stages could reduce the prevalence of patent trolls and improve
the efficiency of the patent process, this Note argues that the widespread
proclivity of courts to invalidate patents under § 101 by utilizing language
indicative of § 102 and § 103 analysis robs patent holders of the ability to
have their claims analyzed under proper standards and injects subjective and uncertain criteria into the patent infringement analysis that could be
avoided by implementing other analytical methods.
As a remedy to the inclusion of § 102 and § 103 factors in the subject
matter patentability analysis, this Note advocates that a substantial
increase in speed or efficiency generated by an invention should be taken
into account in determining if the invention adds “significantly more” to
the idea. This would create a tangible bright-line test that would allow the
claim to move forward and be analyzed under more suitable Patent Act
Sentencing drug crimes and treating drug-addicted defendants often stem
from contradictory theories of punishment. In the late twentieth century,
courts traded rehabilitation for retributive ideals to fight the “War on
Drugs.” However, beginning with the Miami-Dade Drug Court, treatment
and rehabilitation have returned to the forefront of sentencing policy in
traditional and alternative drug courts.
Jurisdictions have implemented a variety of policies designed to treat
addiction as opposed to punishing it. Community courts, such as the Red
Hook Community Justice Center in Brooklyn, New York, community-panel
drug courts, such as the Woodbury County Community Drug Court in Iowa,
and Hawaii’s Opportunity Probation with Enforcement represent efforts to
address treatment within the court system. This Note argues that certain
policies are more likely to benefit drug-addicted defendants than others,
including procedural justice, predictable sanctions, and an increased focus
on treatment. It also posits that qualitative studies measuring long-term
success of drug treatment programs should be commissioned to ensure that
drug courts utilize the most effective treatment policies that promote