Vol. LIV No. 2

Separation of Powers in Thought and Practice?

Abstract:  The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This Essay, however, focuses resolutely on the functional separation of powers in what M.J.C. Vile called its “pure form.” Reexamining the theories of […]

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The Expressive Synergies of the Volcker Rule

Abstract:  In this Article, I propose an implementation of the Volcker Rule that balances the statutory mandate to promote the safety and soundness of U.S. banking organizations with the significant role that bank-affiliated dealers currently play as providers of liquidity in over-the-counter markets. The Volcker Rule restricts the proprietary trading activities of U.S. banks and […]

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Wherefore Art Thou Romeo: Revitalizing Youngberg’s Protection of Liberty for the Civilly Committed

Abstract:  Thirty years ago, in Youngberg v. Romeo, the U.S. Supreme Court recognized that those who are involuntarily committed in a state institution enjoy a constitutionally protected liberty interest, which protects the right to reasonably safe conditions of confinement, freedom from unreasonable restraint, and minimally adequate training sufficient to ensure these liberty interests. In a […]

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The Causal Context of Disparate Vote Denial

Abstract:  For nearly fifty years, the Voting Rights Act of 1965 (“VRA”) and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. Modern vote denial practices that have a disparate impact on minority political participation, however, increasingly fall outside the VRA’s ambit. As judicial tolerance of disparate impact claims has waned […]

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Fraudulent Corporate Signals: Conduct as Securities Fraud

Abstract: Paying a dividend, repurchasing shares, underpricing an initial public offering, pledging collateral, and borrowing using short-term, instead of long-term debt, are all forms of corporate communications. They are “corporate signals” that tell investors certain things about a company’s operations and current financial position, and about the managers’ confidence in its future performance. This Article […]

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United States v. Mehanna, the First Amendment, and Material Support in the War on Terror

Abstract:  This Note examines the recent conviction of U.S. citizen Tarek Mehanna for providing material support for terrorism. Mehanna was convicted of providing material support for terrorism not because he posed an immediate threat, but rather because he translated al Qaeda propaganda into English. This Note argues that the 2010 U.S. Supreme Court case Holder […]

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Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases

Abstract:  Clemency, the power to reduce the sentence of a convicted criminal, has existed since ancient times. Yet, the use of this power in the United States has significantly declined in recent decades. The U.S. Supreme Court has called executive clemency “the fail safe” of the criminal justice system, and has determined that some minimal […]

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No Cilia Left Behind: Analyzing the Privacy Rights in Routinely Shed DNA Found at Crime Scenes

Abstract:  As science advances, researchers are learning more about the meaning of information that is contained in the human genome. Because we routinely shed DNA in public, this has significant implications for an individual’s ability to keep genetic information private. If routinely shed DNA is found at a crime scene, there is a significant governmental […]

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Social Security Survivor Benefits: Why Congress Must Create a Uniform Standard of Eligibility for Posthumously Conceived Children

Abstract:  Legal issues surrounding posthumously conceived children of-ten arise in the context of the Social Security Act, which looks to state law to determine who qualifies for benefits through a deceased parent. Be-cause states have failed to respond promptly to the possibility of posthumous conception, reliance on state law does not adequately protect the rights […]

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Judicial Policy Nullification of the Antitrust Sentencing Guideline

Abstract:  The Federal Sentencing Guidelines provide for special treatment of hard-core cartel activity to ensure that penalties for antitrust crimes effectively deter and punish criminals. The U.S. Supreme Court’s transformational sentencing cases, however, have returned significant discretion to sentencing judges, including the discretion to vary from the Guidelines on policy grounds. Yet, judicial discretion in […]

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