In two recent opinions, Maryland v. Shatzer and Howes v. Fields, the Supreme Court concluded that inmates serving prison sentences were not in custody for purposes of Miranda, in Shatzer’s case while he was living among the general prison population and in Fields’ case while he was undergoing police interrogation. The question addressed in this Article is one that has divided the lower courts in the wake of those two decisions: the impact of the Court’s rulings on the hundreds of thousands of pretrial detainees in this country, many of whom are poor, Black, and Brown. The Article maintains that the Court’s language and reasoning in Shatzer and Fields, as well as the relevant policy considerations, call for limiting the reach of those opinions to prisoners serving time. The Article therefore concludes that pretrial detainees should be deemed to be in Miranda custody for the duration of their confinement prior to trial. Any other result would allow gamesmanship on the part of prosecutors in making charging decisions and bail recommendations and would enable law enforcement to trade on the coerciveness of pretrial detention to elicit unwarned confessions from suspects who are especially susceptible to the threats and promises that are a leading cause of false confessions and who disproportionately represent communities of color and financially vulnerable populations.
As the digital revolution continues to transform competition among businesses, U.S. antitrust enforcement has struggled to remain effective. The U.S. has long depended on a system of dual antitrust enforcement through both the Federal Trade Commission (FTC) and the Department of Justice (DOJ). Modern technology has greatly exacerbated existing structural deficiencies of the two-headed approach, at times resulting in deadlock. The two agencies approach new antitrust issues generated by computational technologies differently and fight over who should lead key investigations, leading to economic uncertainty in the most important business sectors. These enforcement disagreements can also hobble the government's response to significant national security issues emerging from the interplay of technological competition among private companies and among nation states. Further, dual enforcement hinders government action in the newly critical area of data privacy: The agency responsible, the FTC, suffers a mission overload of enforcing both antitrust and privacy, which can work against each other. The best solution is for the DOJ to become the sole antitrust enforcement agency. First, antitrust decisions, especially in the technology arena, directly affect geopolitical competition and international relations, a province constitutionally assigned to the President. It therefore makes more sense for the DOJ, which, unlike the FTC, is controlled by the President, to direct antitrust enforcement as one piece of a larger foreign policy. Second, consolidating enforcement in the DOJ would also allow the FTC to concentrate on enforcing privacy law, free from its sometimes-conflicting antitrust mandate. Dual enforcement of antitrust law should yield to single agency enforcement, with the FTC enforcing privacy and the DOJ enforcing antitrust.
Download This Paper Open PDF in Browser Add Paper to My Library Share: Permalink Using these links will ensure access to this page indefinitely Copy URL Copy DOI
De minimis tax rules—rules that eliminate tax burdens for low-income taxpayers or low-dollar transactions—abound in the tax law. Despite the prevalence of such rules, legal scholarship has treated them as—well—de minimis, or as mere rounding errors that do not merit sustained attention. This perspective is understandable. If de minimis rules address insignificant taxpayers or tax liabilities, aren’t the rules themselves likely to be insignificant? Recent tax law developments have revealed that this conception of de minimis tax rules is deeply misguided. Major allocations of tax law liability, as well as accompanying questions about the fairness, efficiency, and administrability of the tax system, turn on the existence and design of de minimis tax rules. In the wake of the recent Tax Cuts and Jobs Act, for example, astute industry players successfully lobbied the Treasury Department to create de minimis tax rules, thereby scoring significant monetary victories. De minimis tax rules like these not only serve as low-salience giveaways, but are also poorly designed in a way that undermines the integrity of the tax system. The lack of scholarly attention to de minimis tax rules has left this lobbying largely unchecked. There is no scholarly framework evaluating existing de minimis tax rules. There is no policy framework to help lawmakers decide why, when, or how such rules should be made. And there is no separation-of-powers framework analyzing when the Treasury Department has the authority to create de minimis tax rules without express Congressional authorization. This Article seeks to fill this gap by analyzing de minimis tax rules along all of these dimensions. It provides a framework for considering when de minimis tax rules are preferable to other policy options and offers important design considerations. Scholars can apply this analysis to the de minimis tax rules that already pervade the Code and policymakers can use it to guide the many more they will consider in the future.
The first I knew of Doug Rendleman was his name, after reading his work on the United States law of remedies.
The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis - especially in the South, where HIV-specific criminal laws are enforced with the most frequency. People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they fail to disclose their HIV-positive serostatus before engaging in sexual or needle-sharing activities. Passed in response to panic following the discovery of HIV, these laws have not kept pace with medical advancements regarding the transmission and treatment of the infection. As a result, they criminalize behaviors that pose little risk of transmission and punish people who cannot or do not infect others. HIV criminalization laws also contribute to the spread of HIV by disincentivizing HIV testing, which would otherwise connect people to prevention and treatment plans. While other scholars have critiqued these laws, this Article is the first to argue that state legislatures should pivot away from criminalization toward a comprehensive response to HIV informed by harm reduction-a branch of public health emphasizing risk mitigation. This approach must prioritize both the expansion of preventative services and the repeal of most HIV exposure laws. Simultaneously broadening services and narrowing criminal liability would remove barriers to HIV testing and promote early medical interventions, which reduce the spread of HIV and improve health outcomes. This paradigmatic shift also introduces a framework that can be implemented in other public health contexts that currently over-rely on criminalization throughout the region and the country.
Current First Amendment doctrine has set public health regulation and protections for commercial speech on a collision course. This Article examines the permissibility of compelled public health and safety warnings after the Supreme Court’s decision in NIFLA v. Becerra through the lens of a concurrence to the Ninth Circuit’s en banc decision in American Beverage Association v. San Francisco suggesting that only health and safety warnings dating back to 1791 are presumptively constitutional under the First Amendment. Rejecting this form of “public health originalism,” this Article first assesses the current doctrinal landscape of compelled public health and safety warnings in the context of commercial speech. It then turns to the history of such warnings, revealing that contrary to apparent assumptions underlying “public health originalism” in its deregulatory form, laws compelling speech including to protect public health existed in the framing era and were not thought to clash, in the modern sense, with individual liberties, including the freedom of expression. Finally, this Article offers a reading of NIFLA in light of the underlying normative interests of speakers and listeners that attempts to reconcile contemporary First Amendment doctrine and compelled public health and safety warnings.
Employers rarely pay for sexual harassment. The #MeToo movement has not changed this legal reality. Title VII of the Civil Rights Act of 1964—the nation’s primary workplace antidiscrimination law—contains a harassment loophole. Harassment is the only kind of Title VII violation that allows employers to avoid liability if they offer training and reporting opportunities to workers. In contrast, employers must automatically pay for all other Title VII claims such as discriminatory firings, even when firms have trained their employees not to discriminate. This Article makes the case for closing the loophole by aligning harassment liability with other Title VII offenses and holding employers automatically responsible for all proven incidents of workplace harassment. When the Supreme Court created the harassment loophole years ago, it assumed that employers would enact workplace measures to effectively deter harassment. Unfortunately, the #MeToo movement has convincingly demonstrated that the problem of workplace harassment remains widespread despite decades of harassment training. Even though firms express a rhetorical commitment to antiharassment values, many employers engage only in cosmetic compliance and fail to take meaningful steps to actually curb harassment. Closing the harassment loophole would not only represent a tangible legal solution to the ongoing problem of harassment, it would also advance the goals of compensation, deterrence, and cost spreading that lie at the core of Title VII. Just as companies must pay for all other Title VII violations— regardless of formal policies that prohibit misconduct—courts should hold firms strictly accountable for sexual harassment.
At a doctrinal level, the subject of this Article is timely During this time of the coronavirus pandemic, casinos have been closed and large populations have been subject to stay-home orders from local and state authorities One can reasonably expect a large increase in electronic gaming and thus an increased need for proper consideration of its taxation This Article argues for a cash-out rule of taxation At a deeper level, the subject of this Article is timeless Tax law is wickedly complex for a reason This Article explores that complexity using the example of electronic gaming It grapples with the source of that complexity: an inherent and unresolvable tension between economic theories of income and the practical needs of administering a system of taxation to a large population in a democracy That tension led some scholars to argue for a standards-based approach to taxation This Article considers and rejects that argument Legal rules are necessary to mediate between theory and practice Hence, this Article demonstrates the continued relevance and importance of doctrinal analysis in legal scholarship [ABSTRACT FROM AUTHOR] Copyright of Washington & Lee Law Review is the property of Washington & Lee University for the benefit of the Washington & Lee University Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission However, users may print, download, or email articles for individual use This abstract may be abridged No warranty is given about the accuracy of the copy Users should refer to the original published version of the material for the full abstract (Copyright applies to all Abstracts )
This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm even where the loss has been compensated monetarily. Moreover, where injunctions are requested but denied, the lack of irreparable harm seemed to have been the factor most often articulated as the reason for the denial.
Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades? This Article seeks to address those questions by comparing the language used in print media coverage of two highly salient cases involving similar legal issues decided fifty years apart: Brown v. Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments. That conclusion is striking. First, it suggests that in the ongoing scholarly debate over the nature of the Justices’ approach to their work, the press has chosen sides. Rather than closely interrogating the Court’s work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience—because we already know that the Justices’ political views and allegiances are the true drivers of Supreme Court decisions. Thus, contemporary press coverage tends to emphasize such factors as the political affiliation of the president who appointed a particular Justice. Second, it raises questions about the way in which the contemporary press is discharging its responsibility to educate the public about the Court and its work. It also raises the possibility that the public will become predisposed to doubt the Court’s legitimacy, and, indeed, the very legitimacy of the American system of judicial review. If the Court’s decisions really reflect nothing more than the Justices’ political predilections and commitments, or those of the elites to which they belong, it is important for the public to know that. Nothing could be more important than discovering and documenting the fact that the Justices wear no clothes. On the other hand, whether Supreme Court decisions deserve to be viewed in that way is a question that needs to be tested through a careful examination of the Court’s work product. It is something to be proved rather than presumed. The contemporary print media’s seemingly casual assumption that the main point about reporting on the Supreme Court is not to test the validity of the Court’s reasoning, and explore its flaws, but to try to trace connections between the Justices’ voting behavior and their political or other commitments, may well corrode public confidence in the Court. If that occurs unnecessarily, and without adequate justification, the consequences for the institution of judicial review may well be dire. Moreover, if the public’s expectations are lowered, so too may be the standards the Justices set for themselves and each other. In other words, if the press leads us to believe that the Court’s work product is nothing more than politics, that may well become a self fulfilling prophecy—if it has not already happened.
