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.
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.
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.
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.
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.
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.
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.
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.
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.
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.