Cook v. NARA Versus the Public’s Right to Know

Sarah Lamdan

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

This case note suggests that the Second Circuit tipped the balance too far in favor of privacy in Cook v. NARA by mistakenly (1) treating Bush and Cheney like ordinary academic scholars, (2) ignoring the open-government, transparency purposes of both the Presidential Records Act and the Freedom of Information Act, and (3) determining that PRA embargo periods are to provide former officials with unfettered access to their records.

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What Iron Pipefittings Can Teach Us About Public and Private Power in the Market

Sandeep Vaheesan

In this Article, the author examines the current debate on whether state and local regulations that impede emerging players (like Airbnb, Tesla, or Uber) serve the public interest. Vaheesan argues that this focus on government restraints implicitly discounts private efforts to create closed markets—whether it is, for example, by Amazon, Comcast, or Google. This Article goes on to demonstrate, through the example of a recent Federal Trade Commission decision on the monopolization of the domestic iron pipe fittings industry, that sometimes it is only through public intervention that competition can be maintained against private forces seeking to do away with it.

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Go Set a Watchman and Growing Up

Allen Mendenhall

The narratives of Jean Louise in To Kill a Mockingbird and Go Set a Watchman are as consistent as lived experience, which is marked by disruption and contingency, ambiguity and rupture, fragmentation and complexity. Only the careless would have accepted Jean Louise and Atticus as one-dimensional, self-contained figures unspoiled by the mores, customs, and vocabularies of their white discursive community. Such a sanitized view of Jean Louise and Atticus erases and rewrites rather than represents history in its disturbing, enlightening variety and complexity. Jean Louise and Atticus are not stock character types; their thoughts and behaviors are irreducible and inexhaustible.

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Harry Pratter’s Wisdom

Jonathan Pratter

From 1950 to 1994 Harry Pratter taught law at Indiana University-Bloomington. One of his favorite sayings (he had many of these) was Maitland’s “[T]aught law is tough law,” a phrase that a forty-four year teaching career entitles
you to utter with some frequency. In response to Sartre’s notorious challenge, “Do you have anything to say?” Pratter could certainly answer yes. He took Sartre literally. Pratter preferred to speak—that is to teach, and not to write. The source of Pratter’s strong preference for speech over writing must remain a mystery. The consequence is that a good deal of what he thought and said has not been preserved.

That’s a shame because Harry Pratter had something to say that was well worth hearing. The hope is that this essay will be able to convey something of the flavor and tenor of Harry Pratter’s thought.

Full article available here.

Solving the Puzzle of Transnational Class Actions

Kevin M. Clermont

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

Full article available here.

From the Seat of the Chair: An Insider’s Perspective on NCAA Student-Athlete Voices

Scott Krapf

This Article explains how student-athletes already have a significantly influential voice. The Author calls upon his personal experience as a former Division I student-athlete and Chair of the NCAA Division I National Student-Athlete Advisor Committee to show that student athletes are capable of effectuating change by expressing themselves through existing means, rather than unionization.

Full article available here.

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.

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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.