Notes

This Note explores whether “constitutional default rules,” or judicially crafted constitutional rules designed to spur legislative action, can generate interbranch cooperation in the area of criminal procedure. The Note looks at two types of constitutional default rules—the “model” default rule and the “penalty” default rule—in theory and in practice, examining how the Court has employed such rules to generate a dialogue with Congress in order to implement constitutional rights. The Note argues that while there have been notable failures by the Court in using the default rule to elicit a rights-protective legislative reaction (namely, in the case of Miranda v. Arizona) under the right conditions, the constitutional default rule may still be a viable tool for spurring progressive legislative policy and reform of the criminal justice system.

The valuation of a pharmaceutical company often depends on its ability to bring a drug to market, making information about the likelihood of Food and Drug Administration (FDA) approval critical to investors and a highly sensitive issue for the company. Since the FDA drug approval process is not public, investors must rely on company disclosures to evaluate the likelihood of FDA approval. Currently, the FDA will not disclose the content of action letters sent to sponsor companies, giving company executives dangerous discretion over whether to disclose the information and how to present it. This discretion, coupled with a lack of oversight over the content of the disclosures, has resulted in several recent cases of fraud among pharmaceutical companies. As a way to curb such company discretion and prevent future fraud, this Note proposes mandatory public disclosure of action letters sent by the FDA to sponsor companies.

Since the presidential election of 2000, a host of new claims has arisen alleging unlawful denial of the right to vote. Litigants have challenged the use of error-prone voting machines, misleading registration forms, and the highly controversial photo identification requirements for in-person voting. The law protecting the right to vote, however, is in disarray, leaving courts confused and unsure of how to proceed with these challenges. In particular, courts have disagreed sharply over the content of the relevant constitutional standard and how to apply it. Some courts have adopted the standard articulated by the Supreme Court in its 1992 decision, Burdick v. Takushi, while others have applied strict scrutiny. This Note criticizes the Burdick standard for being incapable of producing consistent results and advocates for a modified version of strict scrutiny motivated by structural concerns inherent in the democratic process.

Under the Supreme Court’s current protective sweep doctrine, it is constitutional for law enforcement officers to conduct a cursory sweep of a home incident to arrest where they have reasonable suspicion to believe the home may harbor a dangerous third party. The Supreme Court, however, has not clarified whether the protective sweep doctrine applies where there is no arrest. While at least one federal circuit court currently holds the view that protective sweeps are invalid absent an arrest, most circuits have indicated that protective sweeps may be valid even when they are not incident to an arrest. This Note argues that neither side of this circuit split has struck the right balance. By focusing too much attention on the “incident to arrest” language in Maryland v. Buie and not enough attention on the Court’s express concern for officer safety, the decisions refusing to extend the protective sweep doctrine to any non-arrest situations prohibit protective sweeps in cases where they would be reasonable and, thus, constitutional. In contrast, by failing to respect the Court’s repeated affirmations that exceptions to the warrant and probable cause requirements should be limited, and by brushing aside the importance of the arrest in Buie, the decisions extending the protective sweep doctrine to non-arrest situations either sanction unconstitutional searches or provide insufficient guidance to lower courts and the police, leaving Fourth Amendment privacy rights vulnerable. This Note argues that, to strike the right balance between protecting government interests and Fourth Amendment privacy rights, courts must incorporate a proper inquiry into the “need to search” into their reasonableness analysis. Specifically, they should require a compelling need for officers’ initial lawful entry into a home for protective sweeps to be valid. In applying this standard, courts should draw a bright line according to the type of entry involved, extending the protective sweep doctrine to situations where officers have entered a home pursuant to exigent circumstances or a court order, but not where officers have entered a home pursuant to consent. Such an approach will maintain the limited nature of this exception to the warrant and probable cause requirements while allowing officers to protect themselves when the public interest so requires. It will also provide lower courts and officers with clear guidelines on how to apply the law. As an ancillary benefit, this approach will also minimize the risk of pretextual searches.

Sarbanes-Oxley and the accompanying era of heightened corporate governance dramatically changed the composition, role, and responsibilities of corporate boards. As a result of these changes, many of the justifications for traditional director compensation plans no longer apply. As directors struggle with their new responsibilities as independent corporate monitors, the manner in which they are compensated must reflect these changes. A director compensation plan in which directors receive compensation primarily in the form of cash, coupled with finely tailored equityholding requirements, strikes the right balance of director independence and director accountability. It also facilitates the creation of corporate boards drawn from a more diverse pool of talent.

New technologies such as the VCR and Google Book Search can change the way copyrighted works are used, thereby making their innovators rich. Copyright owners are aware of these riches and often strategically sue the technology companies with the aim of gaining a share of the money. This dynamic—an innovator investing to create a new technology and a creator of a copyrighted work then suing for her share of the profits—creates an investment incentive problem. The dual goal of promoting the efficient creation of both new copyrighted works and new technologies that augment those works requires us to choose a legal rule that divides the gains from these new technologies between authors and innovators. The fair use doctrine—the statutory rule that allows some types of copyright infringement—is the legal rule that is used to do this dividing. However, economic theories of copyright law do not contain an analysis of investment incentives. This Note analyzes the effects fair use has on the incentives to create copyrighted works and to invest in technologies that affect those works.

Since its emergence in the 1990s, Internet gambling has grown into a $12-billion-per-year industry. In October 2006 Congress passed the Security and Accountability for Every Port Act, which includes a provision that prohibits domestic financial institutions from moving funds to and from online casinos, all of which are located overseas. While the new law has certainly caused a major stir in the Internet gambling community, users and overseas companies are continuing to find new ways to circumvent it. In this Note, the author first gives an overview of the gambling industry and the problems it poses to gamblers and communities. The author then reviews the tactics Congress attempted to use over the last decade in fighting Internet gambling—criminalizing the operation of a gambling website, criminalizing individual gambling, and criminalizing funds transfers to and from casinos—and explains why each method fails to address, and often exacerbates, the very problems the legislation seeks to resolve. The author then proposes a new method of regulation and explores how that system could significantly reduce the problems of Internet gambling.

This Note analyzes the National Football League’s (NFL) 2002 decision to implement an innovative—and controversial—policy aimed at increasing the League’s number of minority head coaches. Designated the “Rooney Rule,” the policy mandates that every NFL team interview at least one minority candidate upon the vacancy of a head coaching position or be subjected to a significant monetary fine. Despite ongoing allegations that it promotes tokenism and is a form of reverse discrimination, the Rule has reached uncharted success. While other professional sports with large minority populations (e.g., the National Basketball Association) have succeeded in integrating their head coaching positions over the past twenty years without analogous action, this Note argues that the pre–Rooney Rule NFL hiring process remained relatively static because decisionmakers unwittingly held (and often still hold) archaic biases regarding the intellectual ability of minority candidates to handle the high degree of organizational complexity in football. By deftly traversing the line between “soft” and “hard” variants of affirmative action, the Rule has proven effective because it forces decisionmakers harboring this unconscious bias to expand previously restricted coaching networks and come face-to-face with a candidate they would never have considered otherwise.

In this Note, the author argues that sunset provisions associated with tax legislation are, in their current form, the product of political maneuvering designed to bypass budgetary constraints and are exploited as a means of enacting what is, in reality, permanent legislation. The use of sunsets in this manner has lead to considerable uncertainty regarding the future of their associated tax provisions. This uncertainty, in turn, has created opportunities for legislators to extract rents from lobbyists, generated inefficiencies for both taxpayers and the government, and increased overall tax code complexity. These problems can be minimized, however, if sunsets are used in a more principled manner. This Note argues that sunset clauses in tax legislation can be made more efficient by limiting both the occasions in which sunsets are employed as well as the procedures used to implement them. First, sunsets should only be used in conjunction with certain kinds of tax incentives: The incentives should be simple, of limited duration, and provide diffuse rather than concentrated benefits. Second, sunsets should only be implemented through a limited set of congressional budgetary procedures: They should only be included as part of the reconciliation process for enacting fiscal legislation if the underlying bill increases rather than decreases revenue, and if Congress enacts and adheres to a revenue-neutral, pay-as-you-go set of budgetary rules. These changes, both substantive and procedural, will increase overall efficiency in the use of sunset provisions in tax legislation.

Although the United States’ so-called “War on Terror” has entailed significant military action, it has also involved the augmentation of the executive’s law enforcement powers. The result has been the emergence of a distinct “counterterrorism” model of coercive government action, falling between the traditional models of war and criminal law enforcement. This Note seeks to place the U.S. counterterrorism model within a larger international context by comparing it with that of another Western democracy, Spain. The author contends that the U.S. model evinces less respect for customary checks and balances than does the Spanish. Nonetheless, the author questions whether the Spanish model’s greater relative commitment to checks and balances has in practice prevented government overreaching. The author concludes that both the Spanish executive and Parliament have overstepped the bounds of their constitutionally prescribed counterterrorism competences, despite the existence of checks and balances. In addition to suggesting that these excesses may be partially attributed to the institutional heritage of Francoist Spain, the author surmises that government overreaching may be endemic in any regime, such as the Spanish, that transparently vests special counterterrorism competences in the executive and legislative branches.