Articles

The Inescapable Federalism of the Ninth Amendment

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth Amendment has been Professor Randy Barnett, who has argued in a number of articles and books that the Ninth Amendment was originally understood as guarding unenumerated natural rights. Recently uncovered h...

Scientific Speech

Traditional First Amendment categorizations of speech content, entrenched as constitutional precedent through many cases and decades, fail to reflect the three fundamental philosophical categories of speech content: scientific speech, historical interpretations, and viewpoints. In particular, courts ignore or grossly mishandle questions of what First Amendment protection to give scientific speech. This constitutional mistreatment of scientific speech-a considerable fraction of all speech cont...

Individual or Collective Liability for Corporate Directors?

Fiduciary duty is one of the most litigated areas in corporate law and the subject of much academic attention, yet one important question has been ignored: Should fiduciary liability be assessed individually, where directors are examined one-by-one for compliance, or collectively, where the board's compliance as a whole is all that matters? The choice between individual and collective assessment may be the difference between a director's liability and her exoneration, may affect how boards fu...

Improving Title I Funding Equity Across States, Districts, and Schools

For decades, the federal role in school finance has been guided by the simple principle that greater aid should flow to areas with higher poverty. However, this principle is largely violated in practice. Through a novel empirical analysis of federal allocations across states, districts, and schools, this Article demonstrates serious inequities in the allocation of funds under Title I of the Elementary and Secondary Education Act, the single largest stream of federal aid for disadvantaged chil...

Notes

Schering the Market: Analyzing the Debate over Reverse-Payment Settlements in the Wake of the Medicare Modernization Act of 2003 and In re Tamoxifen Citrate Litigation

The Hatch-Waxman Act, a piece of legislation that seeks to foster generic competition for brand-name pharmaceuticals, has led to the troubling practice of reverse-payment settlements. In such settlements, the brand-name company pays the generic company a sum of money to delay the generic's entry into the market. Thus, the settlements raise antitrust concerns, but they also are complicated by the patent regime at play. This Note considers some of the prevailing antitrust theories used to analy...

Flooded by the Lowest EBB: Congressional Responses to Presidential Signing Statements and Executive Hostility to the Operation of Checks and Balances

Over the course of the last three decades, U.S. Presidents have experimented with the use of presidential signing statements-written documents issued contemporaneously with the signing of a law. Under the administration of President George W. Bush, the United States has witnessed a massive proliferation in the number of presidential signing- statement objections, including the reservation of the right to not enforce or not comply with the law. Debates over the constitutionality of signing sta...

Cleaning Up Condemnation Proceedings: Legislative and Judicial Solutions to the Dilemma of Admitting Contamination Evidence

State courts have adopted different approaches to valuing contaminated properties for purposes of awarding just compensation in eminent domain proceedings. Of the states that have adjudicated this issue, the majority have held that evidence of contamination is admissible under the principle that market value is the best measure of just compensation and contamination is relevant to market value. A minority exclude contamination evidence to avoid penalizing the condemnee for contamination twice...

Parking-Lot Laws: An Assault on Private- Property Rights and Workplace Safety

In March 2004, Oklahoma passed a law prohibiting property owners from banning firearms from their parking lots. Several months later, a number of interested companies filed suit, seeking to enjoin the law's enforcement. Among other assertions, the companies claimed that such "parking-lot laws" violated their property rights under both the Fourteenth Amendment's Due Process Clause and the Fifth Amendment's Takings Clause. Claiming such laws are necessary for employees to be able to freely exer...