Judicial Selection in Congress’ Lame Duck Session

Carl Tobias

This Article first scrutinizes the Obama Administration confirmation and nomination processes. It then critically explores selection and concludes that Republican obstruction instigated the most open positions the longest time. Because this deficiency undermines swift, economical, and fair case resolution, the Article suggests ideas to promptly decrease the remaining unoccupied judgeships after the session commences.

Full article available here.

Citizens Disunited: McCutcheon v. Federal Election Commission

Adam Lamparello

In McCutcheon v. Federal Election Commission, the Supreme Court invalidated aggregate limits on individual contributions to political candidates and committees. Despite the immediate public outcry, Chief Justice Roberts’ opinion was constitutionally defensible, just like Justice Kennedy’s opinion in Citizens United v. Federal Election Commission. The wealthy, like everyone else, are entitled to the full enjoyment of the Constitution’s express and penumbral guarantees.

The problem is that everyone else—including the poor and middle class—also have that right. As a practical matter, however, the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and on life support for the poor.

Full article available here.

Domestic Violence, Gun Possession, and the Importance of Context

Wesley M. Oliver

Federal law prohibits those convicted of committing an act of domestic violence from possessing weapons. Within a few months of the twentieth anniversary of the enactment of the Violence Against Women Act, the U.S. Supreme Court decided that this statute would apply even to those convicted of crimes that did not necessarily involve violent acts. This conclusion strains the ordinary meaning of language, but is quite consistent with a long tradition in criminal cases that favors a pro-government interpretation of a statute when the public welfare is at stake.

Justice Scalia correctly criticized the majority for creating inconsistent definitions of the same language in a single statute, something courts try to avoid. Viewed as a statutory interpretation case, Castleman’s reasoning is a stretch; viewed as an interpretation of a public welfare statute, Castleman is consistent with a long-standing principle of criminal law.

Full article available here.

Are Indiana’s Newly-Expunged Convictions Still Available for Impeachment?

Graham Polando

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only a matter of time before their recipients will begin to testify. Despite its intent, the expungement legislation fails to completely erase the past: litigants seeking to attack the witness’s credibility may legitimately unearth an expunged conviction.

Full article available here.

Note: Legislating Labors of Love: Revisiting Commercial Surrogacy in New York

Deborah Machalow

In 1978, Louise Brown, the first baby conceived through in vitro fertilization (IVF) changed the world. Doctors first considered fertilization outside a woman’s body in 1934, and it has since become a medical mainstay. Since 1978, around five million children worldwide have been born through assisted reproductive technology. In IVF, eggs are retrieved from a woman’s ovaries and fertilized in a lab. The resulting embryos are transferred into the uterus of either the woman who produced the eggs or of another woman. This procedure has had drastic implications on the law of surrogacy contracts.

Full article available here.

Further Standing Lessons

Heather Elliott

Professor Elliott wrote a piece for the Indiana Law Journal in 2012 (available here).  In this article, she updates her analysis and explores the implications of both the health-care and marriage equality cases on the Court’s standing doctrine.

Full article available here.


Justice Scalia’s Truthiness and the Virtues of Judicial Candor

Allen Rostron

Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. When I choose audio clips from the Court’s oral arguments to play in my constitutional law classes, I would like to offer a balanced sample of views from the left and right sides of the Court. But I cannot resist loading up on Scalia sound bites, because in almost every major case he serves up the sharpest questioning and most imaginative hypotheticals. His judicial opinions are also remarkably passionate and frank. If he thinks a lawyer’s or even a fellow Justice’s argument is nonsense, he will bluntly say so. He has received intense criticism for supposedly being “too political” in some of his opinions, such as his scorching dissent in last year’s case about Arizona laws aimed at illegal immigrants or his bitter denunciation of the Court’s last major ruling on the detention of suspected terrorists. But what purpose is really served by judges hiding their motivations behind a false veneer of detachment and stilted formalism?

Full article available here.


Doctrinal Conversation: Justice Kagan’s Supreme Court Opinions

Laura Krugman Ray

In her first two terms on the Supreme Court, Justice Elena Kagan has crafted a distinctive judicial voice that speaks to her readers in a remarkably conversational tone.  She employs a variety of rhetorical devices: invocations to “remember” or “pretend”; informal and even colloquial diction; a diverse assortment of similes and metaphors; and parenthetical interjections that guide the reader’s response.  These strategies engage the reader in much the same way that Kagan as law professor may well have worked to engage her students, and in the context of judicial opinions they serve several purposes.  They make Kagan’s opinions accessible to lay readers as well as legal professionals, a goal she has specified.  More generally, her conversational style works to persuade her readers that her arguments are grounded in both legal doctrine and the familiar texture of human experience.

Full article available here.


Beyond Chemicals: The Lessons that Toxic Substance Regulatory Reform Can Learn from Nanotechnology

Scott Bomkamp

Nanotechnology is a revolution in applied science. By manipulating molecules on the scale of billionths-of-a-meter, scientists have created materials that exhibit “almost magical feats of conductivity, reactivity, and optical sensitivity, among others.” Nanotechnology also has the potential to drive an economic revolution. Retailers already sell over 300 products that incorporate nanotechnology, and according to one estimate, nanotechnology will be a trillion-dollar-a-year industry by 2015. In congressional testimony, Ray Kurzweil, Chairman and Chief Executive Officer of Kurzweil Techonologies, asserted that nanotechnology would result in the pervasive miniaturization of all human industry by the middle of the twenty-first century.

The tremendous economic benefit of nanotechnology, however, will come at a price. Nanotechnology applications present novel, serious, and possibly irreversible threats to human health and the environment. Recently, the field of nanotoxicology has been developed to characterize and quantify these threats. Part I of this Article describes the emerging field of nanotechnology and its applications.

Because of nanotechnology’s mixed blessing, the United States government must select a strategy to maximize nanotechnology’s economic potential while containing its health and environmental dangers. Part III of this Article argues that the best strategy is to incorporate nanotechnology regulation into a general-purpose toxic substances statute, such as by amending the Toxic Substances Control Act (TSCA), which is intended to regulate all chemical substances at the point of manufacture. Part II of this Article discusses the early research demonstrating health and environmental dangers associated with nanotechnology.

Part IV of this Article provides background on toxic substances law, and Part V proposes changes to United States toxic substances law to address nanotechnology’s threat. Two laws figure heavily into this discussion: TSCA and the European Union directive, known as Registration, Evaluation, and Authorisation of Chemicals (REACH).7 REACH is modeled to a large degree on TSCA, but addresses many of TSCA’s perceived shortcomings. Congress is considering revising TSCA based on REACH, which would essentially create a third-generation toxic substances statute.

Full article (.pdf) available here.

Application of Default Rules to Address Financial Conflicts of Interest in Academic Medical Centers

Joanna K. Sax

This Essay proposes that the rules governing financial conflicts of interest for scientists within the National Institutes of Health apply to scientists at Academic Medical Centers because scientists at both places receive federal funding. The rules governing financial conflicts of interest within the National Institutes of Health are stricter than the rules at Academic Medical Centers. The cornerstone of financial conflicts of interest rules at Academic Medical Centers is disclosure, which is inadequate. This Essay builds on previous work calling for significant changes to rules addressing financial conflicts of interest, and it promotes changes by calling for the application of stringent rules governing financial conflicts of interest in Academic Medical Centers.

Full article (.pdf) available here.