Article
With the Supreme Court’s recent incorporation—in Ramos v. Louisiana—of the Sixth Amendment’s jury unanimity requirement to apply to the states, the project of “total incorporation” is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government, but also the states—with one exception. The Fifth Amendment’s grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the earliest incorporation decisions following the ratification of the Fourteenth Amendment, the Court held that the right to grand jury indictment enshrined in the Fifth Amendment was not a requisite of due process and, therefore, could be dispensed with in state criminal proceedings.
by Roger A. Fairfax, Jr.
Article
Appraisal rights (or dissenter’s rights) entitle a shareholder to the judicially determined “fair value” of her shares upon the occurrence of a merger that she does not support. Once a quiet corner of corporate law, appraisal rights have recently given rise to significant litigation and a growing body of scholarship. Whereas existing scholarship commonly has focused on improvements to be implemented by the judiciary, I propose a legislative improvement.
by Steven J. Cleveland
Article
Foreign disinformation catapulted into the national spotlight with the 2016 presidential election, but its impact is not confined to the electoral map or season. This Article addresses the threat of foreign disinformation by proposing a new statute: a private right of action, enabling harmed persons to directly sue state or private actors, foreign or domestic, who knowingly or recklessly spread disinformation from abroad. Scholars and policymakers have proposed other, far- flung solutions ranging from greater online security to outright censorship. Each of those ideas stumbles on common challenges and lacks a valuable ingredient: an interested party, directly harmed by the foreign campaign, who benefits from a solution and thus has a motivation to act. This proposal adds to the arsenal and grants benefits found nowhere else: public notice of foreign interference; a tool to restrain domestic accomplices who spread disinformation; and a moral, if not always financial, payoff for victims.
by Ari B. Rubin
Article
“Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.” These powers are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”
This principle, repeatedly declared by the United States Supreme Court since 1812, is a fundamental tenet of federal courts jurisprudence. The existence of such powers is described as being virtually self-evident. Inherent powers are those “necessary to the exercise of all others” and are said to derive from the “control necessarily vested in courts to manage their own affairs.”
by Charles M. Yablon
Article
This Article discusses and analyzes the proper framework for the construction
of the terms “financial institution” and “financial participant” as defined in Sections
101(22)(A) and 101(22A) of the Bankruptcy Code (the Code), as they work in
tandem with Section 546(e) of the Code. In 2018, the U.S. Supreme Court issued its
long awaited decision in Merit, which held that the language regarding transfers
“made by or to (or for the benefit of) . . . a financial institution” contained in Section
546(e) does not insulate the ultimate transferee of a constructive fraudulent action
(a CFTA) simply because the company being acquired (the Target) through the
leveraged buyout (an LBO) uses a bank as an intermediary between itself and its
redeeming shareholders (Redeeming Shareholders). Merit stated that in such a
transaction, for purposes of fraudulent transfer law and Section 546(e), the Target,
not the intermediary bank, is the “transferor.” Likewise, Merit stated that the
Redeeming Shareholder, as the ultimate recipient of the transfer, is the “transferee.”
Merit concluded that Section 546(e) does not insulate a Redeeming Shareholder
from a CFTA simply because a bank or similar entity acted as an intermediary
between the Target and the Redeeming Shareholder.
by Peter V. Marchetti
Article
Constitutional police regulation is a complex tangle of substantive rights, remedies, and procedural rules. Together, they appear to scaffold a cohesive system of police restraint. Legal scholars tend to focus criticism on specific rules, impelled by faith that the system can be made to serve its core purpose: protecting civilians against police overreach and abuse. Drawing on critical legal studies, this Article contends that constitutional police regulation is incapable of realizing its putative purpose. Constitutional police regulation frames policing as a series of isolated, individual police-civilian encounters. This is compounded by the unpredictable interpretive interplay between substantive, remedial, and procedural rules. That interplay generates systemic indeterminacy.
by Nirej Sekhon
Student Note
From the earliest days of our Republic, politicians have relied on music as a tool to evoke certain emotions and communicate to the masses. Songs like “The Favorite New Federal Song” and what became “The Star-Spangled Banner” accompanied George Washington’s and John Adams’s elections as expressions of patriotism. Since the Founding Fathers, politicians on the campaign trail have continued to tap into music’s unique ability to rile up crowds and convey beliefs. However, musicians have often clashed with politicians over whether they authorized the use of their songs. Often, a campaign picks popular songs without contacting the artists, or without ensuring it has obtained the proper license.
by Leah Scholnick
Student Note
As of 2020, the collective American student loan debt was approximately $1.6 trillion, a number that has doubled in the last ten years and is projected to grow to $3 trillion or more in the next ten years. This is not a new phenomenon, and the reasons for its staggering growth have been quite clear: increased cost of attendance, stagnant federal grants, increased enrollment, and increased importance of graduate degrees and professional doctorates. Student loan debt is one of the largest amounts of debt, exceeding credit card and auto loans, and only falling behind mortgage debt.
by BiQi Chen
Student Note
Imagine an online banking service governed primarily by its most loyal users. The banking service rewards its users by provisioning them with governance rights based on the extent to which that individual uses the bank’s services. The users, who are most consistently impacted by changes to the service, use their governance rights to guide the service’s decisions using cooperation, collaboration, and voting. While this may sound futuristic, blockchain-based services such as Uniswap have made it a reality by issuing governance tokens to reward loyal users. Uniswap is a blockchain-based digital asset exchange that allows individuals to swap digital assets such as cryptocurrencies.
by Kyle Bersani
