Party Games: The Supreme Court’s 21 Century Jurisprudence by Telephone

Theresa A. Gabaldon 

This Article focuses on a recent Supreme Court decision dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits as a type of equitable remedy permitted by statute. In that decision, Liu v. SEC, the Court continued to exhibit an unfortunate penchant demonstrated in a precursor case—Kokesh v. SEC. This is a predilection for jurisprudence by soundbite—the functional equivalent of Googling its own precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, much like what you would expect from a rousing game of telephone.

Party Games: The Supreme Court’s 21st Century Jurisprudence by Telephone builds on a thorough description of the SEC’s disgorgement remedy (Equity, Punishment, and the Company You Keep: Discerning a Disgorgement Remedy Under the Federal Securities Laws) published by the author in the Cornell Law Review in 2020. The new Article focuses on jurisprudential method. It provides a bit of background on the SEC disgorgement remedy. The Article then briefly describes both Kokesh and Liu, and it introduces the tendency of courts and commentators to confuse the question of whether a remedy is equitable with whether it is punitive—a confusion showcased in Liu. After developing additional necessary context—just why equity has limits at all—the Article turns to a more in-depth examination of the equitable vs. punitive question, making the point that it is exactly the wrong starting inquiry. In the process, it illustrates the folly of assuming that both common sense and context are irrelevant to legal analysis, that precedents are mix-and-match, and that precise usage of vocabulary just doesn’t matter.

The Long Shadow of United States v. Rosenberg: A Biographical Perspective on the Hon. Irving Robert Kaufman

Rodger D. Citron 

Less than two years after Kaufman was appointed to the bench, he presided over the most important criminal case of the Cold War, United States v. Rosenberg. The defendants—including Julius and Ethel Rosenberg, a married couple with two young sons—were charged with conspiring to pass atomic secrets to the Soviet Union. The case was tried in 1951, while the United States was involved in the Korean War and after the Soviet Union had surprised the world in 1949 by detonating an atomic bomb. After the jury convicted the defendants, Kaufman sentenced the Rosenbergs to death. Numerous appeals followed but none succeeded. The United States executed Julius and Ethel Rosenberg in 1953 amid worldwide protests.

Kaufman was only forty years old when he sentenced the defendants in Rosenberg. Though he ultimately would serve on the federal bench for more than half of his life, his judicial career was defined by the case, which made him one of the most well-known judges in the nation. When the Rosenberg case was in the news, newspapers referred to him as the “Atom-Spy Case” judge and covered his speeches and visits to other cities. Kaufman did not shy away from such publicity, as he continued to be a man in a hurry. Twice before the decade ended, he sought to be elevated to the United States Court of Appeals for the Second Circuit. Each time, his role in the Rosenberg case figured in the debate over his nomination. In 1961, Kaufman secured his appointment to the Second Circuit, where he developed a reputation as a liberal jurist committed to protecting the First Amendment and, among other things, wrote the court’s decision in Filartiga v. Pena-Irala, a landmark human rights case.

Regulatory Productivity in Federal Administration: An Empirical Analysis of the Deep State

Jordan Carr Peterson & Nicholas G. Napolio 

Critics of the so-called “Deep State” charge that administrative agencies regulate too pervasively and too often. These claims, however, do not stand on solid empirical ground. Instead, denunciations of the administrative state rely on sensationalized and unrepresentative narratives of regulatory overreach.

This Article introduces a two-dimensional conception of regulatory productivity comprising the volume of regulations promulgated by federal agencies, as well as temporal trends in regulatory activity. We marshal comprehensive data on all rulemaking pursuant to all significant federal legislation since the enactment of the Administrative Procedure Act to provide a systematic, empirical examination of regulatory productivity among administrative agencies. Namely, we present readily interpretable measures of regulatory productivity for every significant federal statute and supply recommendations for the cultivation of an empirical administrative law.

Further, we employ these data to consider how longitudinal variation in political conditions influences regulatory productivity across all federal statutes. This Article thus offers a template for an empirically rigorous analysis of the Deep State that should allow scholars and practitioners alike to understand better the scope of administrative power. Taken together, our analyses suggest that federal administration, considered systematically and empirically, bears scant resemblance to the domineering Leviathan imagined in conventional critiques of regulatory power in the administrative state.

The 2022 New Jersey Insurance Fair Conduct Act and the Incomplete Evolution of Policyholder Protection

Jeffrey W. Stempel

Passage of New Jersey’s Insurance Fair Conduct Act (“IFCA”) was the culmination of efforts by policyholder advocates to revise unfortunate caselaw and provide increased protection for insurance policyholders presenting uninsured (“UM”) or underinsured (“UIM”) (collectively “UM/UIM”) claims. The IFCA significantly expands policyholder rights beyond those provided in the widely adopted Model Unfair Claims Settlement Practices Act promulgated by the National Association of Insurance Commissioners (“NAIC”)—enough that New Jersey insurers have raised questions about its application and concerns about its reach. In addition to describing the Act, and attempting to answer questions about its likely future application, this Article attempts to site the IFCA in the larger regime of insurer-policyholder relations, a regime that has largely fallen short of consumer expectations. Although the IFCA presents a significant step forward, the legal landscape largely remains one unduly favorable to insurers but can be improved by the concluding suggestions of this Article.


Destroying the Market Without Making a Dime: How Fans Are Risking Copyright Protection by Abandoning Original Creators 

Kailea Swartz

Despite the criticism, Rowling doubled down on her views of gender and biological sex in a lengthy essay that she posted on her website. Notably, she confessed that she “read all the arguments about femaleness not residing in the sexed body, and the assertions that biological women [do not] have common experiences, and [she found] them . . . deeply misogynistic and regressive.” Her stance on these issues continued most recently in the aftermath of International Women’s Day 2022, where she criticized a British politician because the politician “told the British public [she] literally [could not] define what a woman is” and asked if the politician planned to “lift up random objects until [she found] one that rattles.”

Fans applied equal pressure to Rowling’s response and many of them decided they no longer needed to support Rowling to continue to enjoy Harry Potter and its wizarding world. Some fans took Rowling’s views on transgender issues a step further and extrapolated them out to also explain her books’ wholesale lack of LGBTQ+ representation. There are no LGBTQ+ characters explicitly written in the Harry Potter series, but in 2007, Rowling claimed one of the main characters was a gay man. Fans were highly skeptical of this response and considered it an ingenuine attempt to retroactively change the sexuality of her characters without including true representation in the books themselves. In light of their heightened criticism, many fans have started to look inward to the fandom for further Harry Potter material in a show of direct defiance toward Rowling’s views.

Despite their best efforts, fans cannot completely rid themselves of Rowling and her legacy. Rowling enjoys a limited monopoly by way of copyright law for the books she wrote and the characters she created. Without any sort of legal protection, the incentive to craft creative work for public consumption would be lost for creators like Rowling. Juxtaposed to author protection is the protection extended to fans. Fair use is an exception to an author’s exclusive right to their copyrighted material. Fans can engage with copyrighted material under the protection of the fair use doctrine in order to further their own creative efforts. However, the line between acceptable fair uses and those that infringe on the copyright owner is not always clear. Courts evaluate fair use defenses on a case-by-case basis, relying on a multi-factor test. Notably, one of the “most important factor[s]” of the court-fashioned test is the market effect.

The Constitutionality of VAWA 2022’s Special Tribal Criminal Jurisdiction and the Native Origins of Restorative Justice in Combatting Gender-Based Violence

Tamar Prince 

This Note argues that the Violence Against Women Reauthorization Act of 2022’s STCJ provisions are constitutional despite the conspicuous omission of VAWA 2013’s original substantial ties requirement and that Congress does not exceed the scope of its powers in legislating VAWA 2022. Correspondingly, VAWA 2022’s constitutionality is strongly supported by the Supreme Court’s federal Indian law jurisprudence, Congress’s unwavering plenary power over Native affairs, and the trend of modern federal courts to validate inherent tribal sovereignty through federal common law.

Secondly, this Note advocates that VAWA 2022’s recognition of tribal jurisdiction offers a chance to integrate restorative justice practices that have a long history in tribal justice matters, but much less so in American legal history, as an effective solution to the epidemic of violence against women. The restorative practices provisions offer a jurisprudentially necessary perspective to the federal response to gender-based violence and honor indigenous concepts of tribal justice.

Reforming Bail Reform: Balancing the Interests of Defendants and Victims Through the Lens of Domestic Violence Offenses

Emily Grimaldi 

This Note makes the case that states can fashion bail regimes that protect the rights of defendants pretrial and the safety of domestic violence victims. Within the broad bail reforms implemented by the states, there exists room for nuances that protect the victims of crime—such as unique conditions of release, and exceptions to the presumption of release. However, to achieve the goal of bail reform, these conditions can still be tailored to ensure that the defendant is not unduly punished when they have not yet been convicted.

While it is important to recognize that anyone can be a victim of a crime committed by an offender released pretrial, this Note focuses on how bail laws can address the specific concerns of domestic violence. Domestic violence is a serial crime; offenders often return to victimize the same person because of the intimate relationship aspect of the crime. Further, domestic violence is a public health emergency. Victims of domestic violence often experience physical injury and are at an increased risk of being murdered. Victims of domestic violence may also suffer long-lasting mental, emotional, and physical consequences of abuse. For these reasons, it is important to focus on domestic violence victims specifically when evaluating the efficacy of a reform system focused on the defendant’s interests.

This Note seeks to balance the interests of the domestic violence offender and the interests of the domestic violence victim to create a bail system that is the most efficient and advantageous to everyone involved. Bail reform ought to be thought of as a two-tiered system with two sets of interests being weighed. As this Note argues, reformers can and should integrate the statutory and constitutional umbrella that provides pretrial protection for the defendant with release conditions that account for the victim’s interest in safety. Viewing bail reform through this lens will best help states mix and match the components that suit the concerns of that state.

NCAA v. Alston: The Future of College Sports in the Name, Image, and Likeness Era

Austin Taylor 

In National Collegiate Athletic Association v. Alston, the archaic amateur model for college sports was abolished. The United States Supreme Court ruled in favor of student-athletes across the country by striking down National Collegiate Athletic Association (“NCAA”) restrictions on student-athlete education benefits based on antitrust grounds. In doing so, the Court opened the door for student-athletes to benefit from their name, image, and likeness (“NIL”) rights.

Following the decision, the legal landscape for rights of publicity in college sports has quickly evolved as many states have passed NIL laws and the federal government has tried to develop a framework for what a universal NIL law will look like. The current set of NCAA and state laws have granted student-athletes with varying degrees of opportunities to be compensated by selling their NIL rights. As a result, many questions surrounding this new era of college sports remain unanswered. This Note addresses the impact of Alston on college sports, discusses the NIL market and student-athletes’ rights in their NIL, and provides several key principles that Congress may consider when adopting a universal NIL law.


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