Under current Supreme Court case law, a plaintiff does not
have Article III standing to sue in federal court unless that plaintiff can
demonstrate “causation.” The term “causation”
is ubiquitous within the law. Because of
the frequency with which the term appears in various legal contexts, however,
the conceptual analysis associated with that term can vary. Unfortunately, the Supreme Court has never
clearly established the conceptual analysis necessary for making the causation
determination within standing law.
Consequently, there is confusion on this question.
This Article addresses that confusion by relying on causation
terms and concepts fully developed within tort law. The term “causation” is associated with the
“proximate cause” and “cause in fact” analyses within a standard negligence
claim. In the early Supreme Court cases
in which the causation prong of standing was introduced, the Court most often
used cause in fact language in determining the causation prong of
standing. Upon a close inspection of
these early Supreme Court cases, however, it seems likely that the Court
actually intended a proximate cause analysis.
Moreover, a proximate cause analysis is more consistent with the
“gatekeeping” function normally attributed to the standing requirement.
This Article argues that the causation prong of standing
should be interpreted as being analogous to the proximate cause doctrine within
negligence law. This interpretation
would more closely align with the intuitions that originally prompted the
development of the causation prong of standing.
Moreover, a proximate cause interpretation would facilitate the
development of a clear procedure for determining standing at the outset of
litigation, thus fulfilling the “gatekeeping” function attributed to standing.
In Crawford v.
Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that the Roberts decision had killed the
Confrontation Clause by: (1)
impermissibly tying the right of confrontation to the rule against hearsay; (2)
inappropriately allowing pretrial determinations of reliability to replace
actual cross-examination at trial; (3) relying too heavily on malleable,
multi-factor balancing tests; and (4) completely failing to constrain judicial
discretion. Since Crawford, however, the Court has decided Davis v. Washington and Michigan
v. Bryant. Unfortunately, in the
course of deciding those cases the Court has once again killed the
Confrontation Clause. More specifically,
the Court has developed yet another framework that incorporates every single
one of Roberts’s flaws, including its
failure to constrain judicial discretion. This Essay exposes the underlying reasons for
the Court’s failure, offers a solution to the problem, and provides suggestions
for the Court when deciding future cases that involve the constitutional rights
of criminal defendants.
The pervasive culture of underage and excessive drinking on
college campuses has led to numerous federal and state regulatory efforts to
reduce drinking rates among college students.
One such policy has been to restrict alcohol advertisements in college student
publications, which implicates the First Amendment by limiting access to lawful
commercial speech. Although the Supreme
Court has developed a four-part balancing test to determine the validity of
commercial speech restrictions, the Court has not articulated the level of
proof required for assessing the validity of restrictions on alcohol
advertisements in college student publications.
This Note focuses on the degree of constitutional protection
that should be afforded to alcohol advertisements aimed at college
students. It begins by exploring the
background and development of the commercial speech doctrine and focuses on the
vice advertising subset. Next, this Note
discusses policies regarding alcohol use on college campuses and current
initiatives to reduce both underage and excessive drinking. This Note then presents the split between the
Third and Fourth Circuits regarding the proper application of the commercial
speech test when evaluating restrictions on alcohol advertising.
Ultimately, this Note concludes that alcohol advertisements
in college student newspapers should be analyzed using the same standard as
other commercial speech cases. This Note
proposes a resolution of the circuit split by articulating a clear application
and evidentiary requirement for the commercial speech test regarding alcohol
advertisements in college student publications.
Are there property rights on the
moon? Specifically, if a private person
takes possession of property on the moon, whether real estate or removable
resources, does he have a legally cognizable claim? How would he enforce such a claim in
practice? The language of the treaty
governing such matters, the Outer Space Treaty, leaves the question
ambiguous. While the Treaty prohibits
national claims to sovereignty over lunar territory, whether this rule
restricts private ownership claims is an open question.
Though much has been written on
normative questions of the best legal regime for regulating property in outer
space and on celestial bodies, the positive question of the current status of
such rights has been neglected. While
elaborating a new framework for what is currently viewed as an unworkable
regime, scholars have only superficially addressed the issue of the existence
and enforceability of property rights on the moon.
This Note attempts to remedy this gap
in the scholarship by examining three legal doctrines—property law,
international law, and space law—in order to provide a snapshot of the current
state of the law governing property rights on celestial bodies such as the
moon. This Note argues that the
framework for litigating legal ownership in space lie at the nexus of these
three bodies of doctrine.
The goal of this Note is to provide a
toolbox for future litigators. A clear
picture of current law governing property rights on celestial bodies will help
to reduce the ambiguity surrounding the existing legal framework and thereby
provide a better grounding for future policy conversations. This Note attempts to create this clear
picture by describing and analyzing three types of property disputes that might
arise in outer space and how they each might be litigated if they arose
This Note addresses an emerging conflict concerning federal
subject matter jurisdiction and international comity: can and should federal courts issue
post-satisfaction anti-foreign-suit injunctions? The Eighth Circuit has held that a federal
court no longer possesses subject matter jurisdiction to grant anti-suit
injunctions after a party has satisfied judgment. The Eighth Circuit also held that a
post-satisfaction anti-foreign-suit injunction would be inconsistent with
international comity. In contrast, the
Second Circuit has held that a federal court possesses continuing subject
matter jurisdiction to grant anti-foreign-suit injunctions after the
satisfaction of judgment and that such an injunction does not violate
This Note argues that, as a general matter, federal courts no
longer possess subject matter jurisdiction to grant anti-suit injunctions after
the satisfaction of judgment. It also
contends that post-satisfaction anti-foreign-suit injunctions are ordinarily
inconsistent with international comity and concludes that the President and
Congress, not the courts, are better equipped to resolve legal disputes
implicating United States foreign relations.
Recently, two popular topics of discussion within
intellectual property law have been the statutory damage regime and the
legality of peer-to-peer (P2P) downloading. This Note examines a rarely discussed
interplay between these two concepts: the
innocent infringement defense. Innocent
infringement allows a court to dramatically reduce the minimum statutory damage
award for an act of copyright infringement from $750 to $200 per act. Both the Fifth and Seventh Circuits have found
that § 402(d) of the Copyright Act eliminates innocent infringement as a matter
of law in a P2P download setting.
This Note examines those circuits’ reasoning as well as the
various responses from the legal academic community. It argues against those circuits’
interpretation of the phrase “access to published phonorecords,” found in §
402(d), to mean a general availability and a duty to inquire as to the
copyright status of the songs in question. By viewing § 402(d) in this light, those
courts have effectively eliminated the defense when applied to P2P downloading.
This Note advocates for an actual
inquiry into a defendant’s state of mind to determine if they had “reason to
believe” their actions constituted infringement, which would preserve innocent
infringement in a digital environment.
The Bankruptcy Code contains exemptions for swap agreements that
allow creditors to seize collateral, to terminate their contract, and to net
obligations once the debtor files for bankruptcy. By privileging this class of creditors, these
provisions reduce incentives to monitor counterparty risk, and thus magnified
losses experienced during the recent financial crisis. Congress overlooked this role of the
Bankruptcy Code in destabilizing the financial system. Instead, its response was to require that all
swaps be traded through a clearinghouse.
This failure to address one of the contributing factors to the swap
market’s collapse should be worrisome, as a clearinghouse’s traditional risk
management devices likely cannot prevent a similar crisis in the future. Nonetheless, under the proper conditions, a
clearinghouse theoretically has greater incentives to monitor counterparty risk
than its individual members, thereby strengthening market discipline and
financial stability. In order to realize
this incentive structure, certain regulatory measures are necessary, namely
heightened disclosure requirements and strict governance rules designed to
preserve the independence of the clearinghouse’s board from its members.