Contributions

Fail­ure-to-warn claims in prod­ucts lia­bil­i­ty suits face spe­cial prob­lems in prov­ing cau­sa­tion. Many courts have respond­ed by estab­lish­ing a rebut­table pre­sump­tion that a plain­tiff would have read and heed­ed an ade­quate warn­ing if it had been pro­vid­ed. In this Con­tri­bu­tion, Jes­si­ca Christy (’21) con­sid­ers argu­ments that this “heed­ing pre­sump­tion” ulti­mate­ly under­mines the well-being of con­sumers, and con­cludes that such con­cerns are best addressed by rig­or­ous­ly defin­ing “warn­ing defect,” not by abol­ish­ing the pre­sump­tion of causation.

Contributions

When a motorist is arrest­ed on sus­pi­cion of intox­i­cat­ed dri­ving, the gov­ern­ment can­not com­pel him to sub­mit to a blood draw with­out a war­rant or war­rant excep­tion, nor can it make his refusal to sub­mit to a blood draw a crime. But can the gov­ern­ment use the refusal as evi­dence of guilt in a sub­se­quent DUI pros­e­cu­tion on the basis of an implied con­sent statute? In this Con­tri­bu­tion, Max Baum­bach (’21) argues that the Fourth Amend­ment pro­hibits the use of blood test refusal evi­dence in a DUI pros­e­cu­tion where the test itself would have been unlaw­ful to con­duct in the first instance.

Contributions

This Con­tri­bu­tion exam­ines whether com­pli­ance with the Fifth Amend­ment should shield a fed­er­al con­dem­na­tion action from a First Amend­ment retal­i­a­tion claim. Han­nah Beat­tie (’21) argues that the ratio­nales for carv­ing out safe har­bors for gov­ern­ment action to be free from First Amend­ment scruti­ny if in com­pli­ance with the Fourth Amend­ment do not extend to the Fifth Amend­ment con­text. Ulti­mate­ly, this Con­tri­bu­tion con­cludes that an indi­vid­ual should be able to raise a First Amend­ment retal­i­a­tion defense to a con­dem­na­tion action, even if the gov­ern­ment com­plied with the Fifth Amendment.

Contributions

Observers gen­er­al­ly agree that the assump­tion of execu­to­ry con­tracts by debtors in pos­ses­sion in Chap­ter 11 pro­ceed­ings pro­motes the pur­pos­es of the Bank­rupt­cy Code and accords with Con­gress’ intent. Yet courts have been riv­en by the ques­tion of whether the plain text of sec­tion 365 allows the prac­tice. This Con­tri­bu­tion argues that courts for­bid­ding assump­tion of execu­to­ry con­tracts by debtors in pos­ses­sion have mis­di­rect­ed the focus of their tex­tu­al analy­sis. Close exam­i­na­tion of an over­looked phrase with­in sec­tion 365 and of the inter­ac­tions between sec­tions 365 and 1107 pro­vides two inde­pen­dent tex­tu­al bases for courts to read the Code in keep­ing with con­gres­sion­al intent.

Contributions

Does the Supreme Court’s deci­sion in Car­pen­ter v. Unit­ed States con­strain the government’s war­rant­less use of pole cam­eras to sur­veil peo­ple it sus­pects are engag­ing in crim­i­nal activ­i­ty? In this con­tri­bu­tion, Jack Derewicz (’21) argues that the Car­pen­ter opin­ion does not impli­cate this par­tic­u­lar inves­ti­ga­to­ry tech­nique because pole cam­eras do not retroac­tive­ly col­lect the type of infor­ma­tion that, when aggre­gat­ed, present the gov­ern­ment with infor­ma­tion it could not have oth­er­wise obtained.

Contributions

This Con­tri­bu­tion exam­ines whether a bar can dis­crim­i­nate on the basis of gen­der in its bar­tender hir­ing prac­tices. Matthew Peter­son (’21) argues that Title VII’s bona fide occu­pa­tion­al qual­i­fi­ca­tion (“BFOQ”) excep­tion should not shield bars from gen­der dis­crim­i­na­tion lia­bil­i­ty. The text and pur­pose of Title VII com­mand a nar­row inter­pre­ta­tion of the BFOQ excep­tion, and a bar cater­ing to pref­er­ences for female bar­tenders is pre­cise­ly the type of unde­sir­able hir­ing prac­tice that Title VII seeks to pro­hib­it. The “essence” of a bar is mak­ing and dis­trib­ut­ing drinks, and the com­ple­tion of these tasks does not depend upon the gen­der of a bar­tender. Courts should not per­mit bars to jus­ti­fy such dis­crim­i­na­tion with claims of sup­port­ing “authen­tic enter­tain­ment.” Unlike an actor or dancer, whose core job func­tion is per­for­mance, a bartender’s pri­ma­ry respon­si­bil­i­ty is pro­vid­ing service.

Contributions

For decades, the pri­vate right of action for secu­ri­ties fraud has been nar­rowed, both by Con­gress and in the courts. In this Con­tri­bu­tion, Charles Bloom (’21) con­sid­ers the extent to which the Supreme Court’s most recent deci­sion in a secu­ri­ties fraud case revers­es that trend. Ulti­mate­ly, this Con­tri­bu­tion will argue that the Court has per­mis­si­bly expand­ed pri­vate lia­bil­i­ty for secu­ri­ties fraud, clos­ing cer­tain loop­holes cre­at­ed by its ear­li­er precedents.

Contributions

Do Sec­tion 10(b) the Exchange Act and SEC Rule 10b‑5 apply to secu­ri­ties trans­ac­tions entered into in the Unit­ed States where the secu­ri­ty is not sold on a nation­al exchange and is val­ued based on the price of a dif­fer­ent secu­ri­ty not sold with­in the Unit­ed States? In this Con­tri­bu­tion, William Bris­tow (’21) dis­cuss­es the impli­ca­tions of Mor­ri­son v. Nation­al Aus­tralia Bank Ltd., where the Supreme Court held that the Exchange Act does not apply extrater­ri­to­ri­al­ly and thus only applies to domes­tic secu­ri­ties trans­ac­tions. This Con­tri­bu­tion argues that Morrison’s “trans­ac­tion­al test” estab­lish­es a suf­fi­cient con­di­tion for the appli­ca­tion of the Exchange Act, not a nec­es­sary condition.

Contributions

The Fifth Amend­ment pro­hibits the tak­ing of pri­vate prop­er­ty “with­out just com­pen­sa­tion,” but the opti­mal method of deter­min­ing the pre­cise amount of mon­ey that will just­ly com­pen­sate the prop­er­ty own­er is not always clear. The gen­er­al rule has been to set com­pen­sa­tion at the fair mar­ket val­ue of the prop­er­ty at the time the gov­ern­ment takes it, with cer­tain excep­tions. In this Con­tri­bu­tion, Tim­o­thy Lyons (’21) argues that when the gov­ern­ment makes a well-pub­li­cized pre-con­dem­na­tion announce­ment, it may be appro­pri­ate to com­pen­sate the own­er based on the property’s val­ue at the time of the announce­ment rather than its val­ue at the time of the taking.

Contributions

This Con­tri­bu­tion exam­ines whether police have effec­tu­at­ed a Fourth Amend­ment seizure by show of author­i­ty when an indi­vid­ual flees from a momen­tary encounter. Dean S. Ache­son (’21) argues that, under Fourth Amend­ment prece­dent, pre-flight com­pli­ance does not con­sti­tute sub­mis­sion to a show of author­i­ty in a police inter­ac­tion that con­sists of answer­ing brief ques­tions and engag­ing in eva­sive behavior.