Vol. LII No. 5

Presidential Power and Constitutional Responsibility

Abstract: Some constitutional theorists defend unbounded executive power to respond to emergencies or expansive discretionary powers to complete statutory directives. Against these anti-Madisonian approaches, this Article examines how the textual assignment of republican virtues helps to constitute and constrain the president’s power. The Madisonian solution for constitutional constraint both creates institutions for unenlightened statesmen and […]

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FCC Regulation Versus Antitrust: How Net Neutrality Is Defining the Boundaries

Abstract: This Article challenges the various jurisdictional theories that underpin the FCC’s net neutrality regulation. The assertion of jurisdiction by the FCC over any aspect of the Internet ecosystem has raised populist, congressional, and even judicial rhetoric to a crescendo and resulted in a recent vote to defund the FCC’s efforts. This Article places the […]

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Regulatory Hide and Seek: What Agencies Can (and Can’t) Do to Limit Judicial Review

Abstract: Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies’ role in modulating that oversight. We consider cases in which the timing or form of an agency action has curtailed judicial review of the agency’s policy choices. In some such cases, the agency’s choice of form deprived […]

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The Benefits of Opt-In Federalism

Abstract: The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism. Opt-in federalism—in which individuals may in part choose between federal and state rules—is a promising theoretical means to make and […]

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How American Are American Depositary Receipts? ADRs, Rule 10b-5 Suits, and Morrison v. National Australia Bank

Abstract: Over the previous several decades, federal courts employed two tests—the conduct test and effects test—to determine whether a securities fraud suit with foreign elements was sufficiently connected to the United States to proceed in American courts. In its 2010 decision in Morrison v. National Australia Bank Ltd., the U.S. Supreme Court held that only […]

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Cease and Desist: Finding an Equitable Solution in Trademark Disputes Between High Schools and Colleges

Abstract: In 2010, Florida State University told Southeast High School in Bradenton, Florida that they could no longer use the “Seminoles” nickname and logos that the schools have both been using for over fifty years. Unlike many trademark disputes between collegiate institutions and high schools though, Southeast High School refused to “cease and desist” claiming […]

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Uncorking Granholm: Extending the Nondiscrimination Principle to All Interstate Commerce in Wine

Abstract: In a landmark 2005 decision, Granholm v. Heald, the U.S. Supreme Court ruled that states could not constitutionally discriminate in interstate commerce by permitting in-state wineries to ship directly to customers while prohibiting the same for out-of-state wineries. States previously had argued, with some success historically, that the Twenty-first Amendment authorized them to regulate […]

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Time for the Court to Become “Intimate” with Surveillance Technology

Abstract: The Fourth Amendment protects people’s reasonable expectations of privacy when there is an actual, subjective expectation of privacy and when society recognizes that expectation as reasonable. Therefore, Fourth Amendment protections should evolve over time according to society’s beliefs about which areas of an individual’s life should be protected. Law enforcement has seized on the […]

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