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.

Contributions

Do state laws that pro­hib­it employ­ers from dis­crim­i­nat­ing against employ­ees on the basis of med­ical mar­i­jua­na card­hold­er sta­tus effec­tive­ly pro­tect card­hold­er employ­ees? In this Con­tri­bu­tion, Tian Lei (’21) argues that when courts rec­og­nize and legit­imize employ­ers’ inter­est in main­tain­ing drug-free work-place poli­cies, card­hold­er employ­ees become espe­cial­ly vul­ner­a­ble to adverse employ­ment action. This Con­tri­bu­tion estab­lish­es that drug-free work­place poli­cies often leave card­hold­er employ­ees with a choice between their health and their job and that the scope and legit­i­ma­cy of such poli­cies must be inter­ro­gat­ed if the law is to pro­tect med­ical mar­i­jua­na card­hold­ers from employ­ment discrimination. 

Contributions

The fed­er­al­ist mod­el of sep­a­ra­tion of pow­ers often sets up pro­tract­ed con­flict over the extent to which the fed­er­al gov­ern­ment is able to pre­empt the actions of states. Among the grow­ing are­nas for such pre­emp­tion dis­putes is the field of con­trolled sub­stances, which the fed­er­al gov­ern­ment reg­u­lates under the Con­trolled Sub­stances Act (“CSA”). How­ev­er, sev­er­al state leg­is­la­tures have chal­lenged the fed­er­al government’s pre­emp­tive author­i­ty by cre­at­ing med­ical mar­i­jua­na card­hold­er sys­tems, where indi­vid­u­als can reg­is­ter for a card to obtain and con­sume med­ical mar­i­jua­na. Any such state med­ical mar­i­jua­na laws (“SMML”) that were mod­eled this way would pre­vent card­hold­ers from being dis­crim­i­nat­ed against by their employ­ers, and shield doc­tors who pre­scribe med­ical mar­i­jua­na from crim­i­nal lia­bil­i­ty. In this Con­tri­bu­tion, Shri­vats San­gane­r­ia (’21) argues that any such state statute should be pre­empt­ed under a the­o­ry of obsta­cle pre­emp­tion, for the state would have affir­ma­tive­ly autho­rized con­duct that Con­gress pro­hib­it­ed with the CSA, thus frus­trat­ing the pur­pose of the fed­er­al legislation. 

Contributions

Can plain­tiffs bring state law claims of neg­li­gence per se based only on alleged vio­la­tions of the Health Insur­ance Porta­bil­i­ty and Account­abil­i­ty Act (HIPAA)? In this Con­tri­bu­tion, Ryan Knox (’19) dis­cuss­es the inter­ac­tion of HIPAA with state neg­li­gence claims and the legal and pol­i­cy rea­sons chal­leng­ing these pri­vate claims. This Con­tri­bu­tion ulti­mate­ly argues that neg­li­gence per se claims under state law should not be per­mit­ted to be brought when based only on alleged HIPAA violations.

Notes

Does the Sec­ond Amend­ment pro­tect an absolute right to car­ry a firearm in pub­lic places for self-defense? In this Con­tri­bu­tion, Michael Treves (’19) reviews the text and his­to­ry of the Sec­ond Amend­ment and Supreme Court prece­dent, and assess­es the appli­ca­tion of the Sec­ond Amend­ment out­side of the home. Ulti­mate­ly, this Con­tri­bu­tion argues that the “core” of the Sec­ond Amend­ment does not extend out­side of the home, and thus pub­lic car­ry laws do not reg­u­late con­duct with­in the scope of the Sec­ond Amendment.