This Article provides a new perspective on corporate philanthropy by examining a previously unnoticed mechanism through which corporate pro-sociality enhances firm value:  signaling.  In particular, cash donations can signal financial strength.  A substantial and unexpected increase in the level of cash donations can signal that a firm’s insiders perceive the company’s future to be good enough to spend ultra-discretionary funds on unrelated third parties.  The first contribution of this Article is in shifting focus from the traditional “buying goodwill” explanation for corporate philanthropy (i.e., companies engage in pro-social sacrifices because stakeholders are willing to pay more for corporate goodness) to a signaling explanation (i.e., pro-social sacrifices mitigate asymmetric information about a firm’s fundamentals).  But corporate philanthropy is not unequivocally good for the company.  This is where the Article’s second contribution comes in:  examining the conditions under which corporate philanthropy decreases firm value.  Under certain circumstances, managers can use their discretion over pro-social expenditures to co-opt corporate governance mechanisms, thereby increasing the level of agency costs.  This occurs, for example, when managers cause companies to donate to charitable causes affiliated with independent directors.  The Article next evaluates the legal implications of corporate philanthropy.  In particular, the theoretical arguments presented here on how philanthropy can be good (signaling) or bad (co-optation) for the company strengthen the case for introducing some form of mandatory disclosure.

      This Article explores the relationship between two constitutional doctrines that have faced withering criticisms. The first is the scant jurisprudence emanating from the Guarantee Clause, a provision that requires the United States to ensure republican forms of government in every state. John Hart Ely and Richard Posner, among others, have observed that the Clause has been interpreted in ways that demote it to a dormant aspiration, hibernating in a dusty corner of the Constitution where courts dare not enter. The second is sovereign immunity, which protects states from most federal lawsuits. Scholars have labeled sovereign immunity's application as unprincipled and "embarrassing," primarily because this jurisprudence has purportedly outpaced the language of the Constitution.
     Taken seriously, however, the Guarantee Clause could reaffirm and reform the troubled doctrine of sovereign immunity. Reaffirm, because the Clause has the ability to pillar important aspects of sovereign immunity with a more plausible textual basis than any currently cited by the Supreme Court. The text and history of the Guarantee Clause illustrate that it protects representative democracy, a form of government that stands as one means of ensuring stability among the states. Protecting representative government and ensuring states' stability are among the very aims that animate sovereign immunity jurisprudence. Reform, because the Clause also reflects a textual commitment to the principle of popular sovereignty. Therefore, any account of sovereign immunity must reconcile how the People and the States may both claim the mantle of sovereignty in our federal system. The Court's current approach to sovereign immunity fails to engage, let alone resolve, this quandary.
      I offer a detailed alternative approach to implementing sovereign immunity that is far more consonant with popular sovereignty and the principle of representative government. This proposal would expand plaintiffs' ability to challenge states for violations of constitutional violations bearing a substantial nexus with representative government. It would also expand state legislatures' ability to protect states from certain classes of statutory lawsuits through a new concept called "popular immunity."

   A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and on originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it incorporates virtue ethics’ insights.
   Originalism must articulate virtue’s role in constitutional interpretation for a number of reasons. First, incorporating the concept of virtue into originalism will give it greater explanatory power. For example, adding the concept of virtue to the mix helps originalism embrace ideals such as judicial craftsmanship.
   Second, incorporating the concept of virtue into originalism makes originalism more normatively attractive. Over the past thirty years, originalism has come to acknowledge judicial discretion in constitutional adjudication. An originalism that incorporates the lessons of virtue ethics is able to preserve originalism as a viable theory of constitutional interpretation while, at the same time, continuing to acknowledge judicial discretion. An originalism that incorporates virtue ethics’ insights gives the Constitution’s original meaning its due. Simultaneously, it also gives other factors—such as the practical workability of legal doctrine—their due, all in their proper proportion.

     Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) created a new federal anti-retaliation protection for corporate whistleblowers.  Initially, the Department of Labor Administrative Review Board (ARB) and federal courts limited the scope of section 806 by holding that a whistleblower must report conduct that “definitively and specifically” relates to a violation of one of the rules, regulations, or laws listed in section 806 to engage in protected activity.  Recently, however, the ARB abandoned this approach, and held that a whistleblower engages in protected activity under section 806 when she reports information that she “reasonably believes” relates to a violation of one of the rules, regulations, or laws listed in section 806. 

     The ARB’s decision to adopt the “reasonably believes” standard should be entitled to Chevron deference.  However, empirical studies indicate that in cases where Chevron should apply, courts engage in ad hoc statutory interpretation nearly as often as they defer to the agency decision.  

     This Note argues that in the foreseeable event that a court neglects Chevron and engages in ad hoc statutory interpretation the reasonably believes standard should govern the scope of protected activity under section 806 for several reasons.  First, the definitively and specifically standard conflicts with the text of section 806.  Second, the legislative history of section 806 supports the reasonably believes standard.  Third, the reasonably believes standard is more consistent with the reasonable person standard that Congress intended.  Finally, the reasonably believes standard serves two important public policy goals:  harmonizing the protected activity standards under SOX and the Dodd-Frank Wall Street Reform and Consumer Protection Act and helping to remedy the lack of success whistleblowers have had using section 806’s anti-retaliation protections.

      Motions to reopen allow aliens facing removal to have their case reexamined by the Board of Immigration Appeals in light of new evidence or intervening events, and are an important procedural safeguard in immigration removal proceedings. Parties may move to reopen, and the Board may also reopen removal proceedings under its sua sponte authority. Although federal courts of appeals may review final removal decisions, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) severely curtailed the ability of federal courts to review final removal decisions. Prior to 2010, circuits were split on the issue of whether motions to reopen were reviewable by federal courts in light of IIRIRA.

     In Kucana v. Holder, the U.S. Supreme Court held that a decision to reopen made pursuant to a party's motion was reviewable since the discretion to grant or deny such a motion had derived from a regulation promulgated by the Attorney General. The Court held that the Executive could not use regulations alone to change the ability of the federal courts to review their decisions, but bracketed the issue of whether the decision not to reopen sua sponte could be reviewed under this same logic. Following the Court's decision in 2010, the courts of appeals are divided over whether such decisions are reviewable; some circuits have determined that they lack jurisdiction based on pre-Kucana case law, while others have urged a reconsideration of pre-Kucana decisions in light of the Supreme Court's reasoning.

     This Note argues that the decision not to reopen sua sponte should be subject to judicial review under the same reasoning applied in Kucana. Review of these decisions would also be in line with the Supreme Court's movement toward greater judicial review of federal immigration decisions.

     In 2006, the U.S. Supreme Court's decision in eBay, Inc. v. MercExchange, L.L.C. did more than establish the four-factor test that courts must utilize when determining whether to grant permanent injunctions for patent infringement. It also spawned a movement among lower courts to abandon the judicially created and sometimes-criticized practice of presuming the most important factor of the injunction analysis- irreparable harm-upon a showing of patent or copyright infringement. Over the past several decades, presuming such harm routinely permitted courts to automatically grant preliminary injunctions once a plaintiff proved a likelihood of success on the merits. This practice contrasted sharply with the historical nature of preliminary injunctions as "extraordinary" relief, which rested the burden of proof on the plaintiff.

     In Jacobsen v. Katzer, the Federal Circuit became the first circuit to directly address eBay's potential application to preliminary injunctions in the copyright context. The Jacobsen court declined to invoke eBay's standards, and instead applied the Ninth Circuit's pre-eBay presumption of irreparable harm, as Federal Circuit precedent requires application of regional circuit law to copyright matters. This ruling contrasted with every circuit to subsequently confront the issue, including the Ninth Circuit, which effectively overruled the very presumption that the Jacobsen court utilized. This Note posits that the Jacobsen court erred in enforcing the presumption in a post-eBay landscape to begin with, as eBay indeed abrogated the presumption of irreparable harm as applied to copyright preliminary injunctions. Further, it urges the Federal Circuit to apply eBay's holding in future copyright cases where the regional circuit has not directly addressed the presumption's post-eBay vitality.

     This Note addresses the important question of whether all thieves can be held liable for violating section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5.  Over time, the U.S. Supreme Court has cautiously expanded liability for trading on material nonpublic information from corporate insiders only, to tippees, to outsiders standing in a fiduciary relationship to the source of the confidential information.  Recently, the Second Circuit held in SEC v. Dorozhko that a thief who owed no duty to the source of misappropriated information could be held liable if he accomplished his theft by means of affirmative misrepresentation.  This decision represents the next step in increasing liability for outsider trading.

     This Note contends that holding all thieves liable, even those who do not obtain information by means of affirmative misrepresentation, constitutes a logical expansion of liability consistent with section 10(b), Rule 10b-5, and case law.  The traditional requirement of a fiduciary relationship between the misappropriator and the source of the information in outsider trading cases results in under-inclusive doctrine that fails to fully satisfy the purpose of the Exchange Act.  Expanding liability to include all thieves is sound policy that will better protect investors and the integrity of the market.

In the late 1990s, extensive backlogs and delays by U.S. Citizenship and Immigration Services in processing family-based visa petitions caused many children to “age out” of immigration eligibility and face separation from their families.  To rectify this problem, on August 6, 2002, Congress enacted the Child Status Protection Act (CSPA), which permits an applicant to retain classification as a “child” for immigration purposes, even if he or she has reached the age of twenty-one.  The CSPA “freezes” the age of the applicant through a mathematical formula that allows the time that a visa petition was pending to be subtracted from his or her age.

In Matter of Wang, the Board of Immigration Appeals (BIA) limited the applicability of section 203(h)(3) of the CSPA to certain family-based visa petitions.  This Note focuses on the subsequent circuit split between the Second, Fifth, and Ninth Circuits over whether the BIA’s decision in Wang should be given deference under the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.  Ultimately, this Note endorses the Ninth Circuit’s recent holding in Cuellar de Osorio v. Mayorkas.  This Note contends that section 203(h)(3) is ambiguous under the first prong of Chevron analysis.  Applying Chevron’s second prong, this Note argues that the BIA’s construction of the statute represents a reasonable policy decision for the agency to make and thus merits deference.

     In 2010, Congress passed the Patient Protection and Affordable Care Act, legislation designed to comprehensively reform the U.S. health care system.  Soon after the law’s passage, several lawsuits challenged the constitutionality of the individual mandate, a key provision requiring nearly every American to carry a minimum level of health insurance or face a penalty.  Courts have split on whether the individual mandate is outside the scope of Congress’s constitutional authority, and those that have struck down the provision have had to address what fate should befall the remainder of the law.

     Severability doctrine is the exclusive mechanism for the courts to deal with questions of partial unconstitutionality in statutes.  As of this writing, three courts have addressed the mandate’s severability. All have come to divergent conclusions on if, and how much of, the law can be allowed to stand if the mandate is excised.

     This Comment analyzes the split of authority regarding the severability of the individual mandate.  It asserts that the approach taken by the Eleventh Circuit—striking the mandate while leaving the remainder of the law intact—is the appropriate course of action for the Supreme Court if it finds that the mandate is unconstitutional.  This Comment concludes that the judiciary would overstep its constitutional boundaries if it were to strike additional provisions of PPACA, and that any subsequent re-working of the Act is a task reserved for the legislature.

     In February 2011, the Libyan government began systematically and ruthlessly attacking its own citizens in an attempt to put down a political uprising.  These attacks escalated into a full-fledged armed conflict between the government and rebel militias that engulfed the country for several months.  With the old regime finally overthrown, and a new transitional government now in place, Libya looks to mend itself and to undo decades of oppression.

     Although the conflict is officially over, the world’s attention remains on Libya as the new government searches for ways to address the significant challenges left behind by the revolution.  One such challenge is bringing members of the old regime to justice for crimes they committed both before and during the revolution.  As a start to this process, the government has detained Saif Al-Islam Gaddafi, Muammar Gaddafi’s son and former de facto prime minister, with the hope of trying him for crimes against humanity.  But because Libya shares jurisdiction over Saif with the International Criminal Court (ICC), it is unclear what that trial will look like or who will conduct it.  This Comment seeks to help clarify how justice should be pursued in light of the ICC’s governing principles and Libya’s present circumstances.

     This Comment first describes the evolution of international criminal justice over the past century, which culminated in the creation of the ICC.  It then explores the ICC’s fundamental principles and goals, and offers different ways to conceptualize them.  Finally, this Comment observes some of the domestic issues that Libya faces and concludes that, given those issues, the ICC should work cooperatively with Libya to try Saif in his home country.