One of the weak sides of the republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.[1]

The Emoluments Clause to the United States Constitution frequents the news these days, but what is it and why did the founders include it in the Constitution?  The clause states, “No Title of Nobility shall be granted by the United States:  And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.”[2]  When the Constitutional Convention met to draft the United States Constitution it was important to the drafters that their new nation leave behind and protect against the corruption they had experienced in some European practices.[3]  The brand new Americans wanted to avoid corruption resulting from royalty giving gifts and money to politicians, diplomats, legislators, etc. in order to gain influence.[4]  The founders saw this danger in the U.S.’s growing relationship with France and in U.S. generals’ acceptance of money from foreign states during the Revolutionary War.[5]

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The Electoral College – that sometimes maligned process by which the United States elects a new president – was initially established as a compromise between allowing Congress to vote for the next leader of the country and allowing the popular vote to dictate who would hold the position.[1] The founding fathers did not believe that the general public should be tasked with electing a leader and instead gave that job to a group of experts who would make the decision. This means that when American citizens go to the polls, they aren’t voting for the President directly, but rather each vote helps to decide which candidate will receive that state’s electors.[2] That state’s chosen electors then meet and cast their votes for President and Vice President.

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For any new law review or law journal (law review) staff member, one of the first things you learn is how to properly write and edit footnotes.  Staff members spend so much of their time editing and writing footnotes that they often forget to ask why they need twice as many footnotes as text.  Footnotes exist to allow “the interested reader to test the conclusions of the writer and to verify the source of a challengeable statement.”[1]   The creation of the 2:1 footnote ratio began when law professors, trying to get published as frequently as possible in order to gain tenure, realized that student-editors were editing out their creativity in order to force all pieces into the same style.[2]  This caused authors to express themselves in their footnotes, a practice which naturally bulked up the footnote section.[3]    Additionally, the strong competition among law reviews for lead articles (excluding only law reviews of top tier law schools) combined with the pressure editors are under to fill each issue with a preselected number of pages, helped create a “longer the better” mentality, which contributed to today’s lengthy footnotes.[4]

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For many couples, giving birth to a child is the culmination of their relationship. Parenthood is an integral part of the human experience, and when would-be parents find themselves, for one reason or another, unable to conceive, the options are limited. Adoption is an excellent choice, but the hoops through which aspiring parents must jump are often extensive and the process can last for years. Furthermore, the idea of bringing a genetically-related child into the world is a high priority for some.[1] Even if genetics aren’t important, some prospective parents want to know that the child will be carried by a woman who has access to high-quality prenatal care and a family history that doesn’t include drug abuse or mental illness.

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Last month, a minor in Belgium became the first to receive a medically assisted death through euthanasia since the country made the practice legal for children in 2014, renewing the conversation on the issue of assisted death and euthanasia.¹ Belgium is the second country to legalize euthanasia and the only country that currently allows minors of any age access to euthanasia.² (more…)

A combination of “bikini” and “burqa,” the Burqini – swimwear that covers all parts of the body except for the face, hands, and feet – remains at the center of a heated controversy in France. Created in 2003 in Australia by Aheda Zanetti, the Burqini was designed as a garment that would be flexible and comfortable for women who adhered to the “Islamic code of dressing” and also wanted to participate in sports.¹ According to Zanetti, the idea behind the clothing was to promote freedom and a healthy lifestyle, not to encourage oppression of women.² Since 2003, the brand has enjoyed a significant amount of success, particularly with women of the Muslim faith, though not exclusively; some secular women choose to wear the garment because it provides protection from sun exposure.³ (more…)

The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It

Barry L. Johnson

One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct.  One would be wrong, however, at least so far.  The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender’s sentence is still permissible under the now-advisory Guidelines.  While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon.

Read the full Article here.

War and Justiciability

Stephen I. Vladeck

[O]ne may wonder why now is an especially appropriate moment to reflect on the role of the federal courts in civil suits challenging military operations, even more so given the winding down of hostilities in Afghanistan and the settled nature of the judicial role in the Guantánamo habeas litigation. But the prompt for this paper lies in two developments that are relatively recent: the proliferation of the use of private military contractors to conduct traditional military functions (and the concomitant rise of civil suits challenging such conduct), and the blurring of conventional conceptions of the “battlefield” (and, as in the counter-piracy context, of the line between law enforcement and combat operations). For better or worse, these developments have been—and will likely continue to be—litigation-provoking, prompting an ever-growing array of courts to have to consider these same issues in an ever-growing array of contexts. Thus, this paper attempts to provide a more coherent and convincing explanation for when judicial reticence to intervene in such disputes is and is not appropriate, hopefully before the doctrine becomes completely unmoored from its analytical and normative justifications.

Read the full Article here.

How the SEC’s Crowdfunding Rules for Funding Portals Save the Two-Headed Snake: Drawing the Proper Balance Between Integrity and Cost

Patrick Archambault

The CROWDFUND Act required the SEC to adopt rules to facilitate equity crowdfunding.  Although the final rules do not go into effect until 180 days after publication in the Federal Register, preliminary observations can be made.  Both the CROWDFUND Act and the SEC’s final rules impose restrictions for intermediaries, particularly for the newly introduced funding portals.  These restrictions raise the question of whether or not the SEC’s rules create an appropriate balance between adequately protecting unaccredited investors and allowing funding portals to act as gatekeepers.  The specific concern to investors in donating capital to these funding portals is that investments may be subject to fraud.  Due to funding portals’ novelty, this Note pays special attention to funding portals in the context of the SEC’s final rules.

Read the full Note here.

Congressional Funding Speaks Louder than Presidential Words: Cold, Hard Cash Versus the Recognition Power

Eliza S. Bailey

In light of presidents’ consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive’s contemporary recognition power no longer harbors any significance.  In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive’s hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem.  For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas.  Therefore, as the Supreme Court does not address the Executive’s financial recognition of Israel, but rather states the Executive’s spoken recognition is at odds with Section 214(d) in Zivotofsky’s case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy.

This Note will address the U.S. military funding at odds with the Supreme Court’s ruling that the Executive’s claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must “speak with one voice” on the matter of Israeli-Palestinian foreign policy.

Read the full Note here.

If the Shoe Fits: Sizing Up the Applicability of IvI Exclusions to the FDIC

Julianne DeLeo

Holes in the bank’s D&O policy’s coverage are perilous.  They may require the directors to pay out-of-pocket damages, and the FDIC may forego payment.  One of the common gaps that exists in the D&O policy’s coverage is the Insured v. Insured (IvI) exclusion.  Generally, the IvI exclusion excuses the insurer from payment when a claim is brought by, or on behalf of, an insured party against an insured party.  This Note will consider the circumstances in which an IvI exclusion to a D&O policy may excuse an insurer from coverage when the FDIC brings claims against the directors of a failed bank.

Read the full Note here.

Brought Back to Life: Massachusetts Supreme Judicial Court Resuscitates Parole Eligibility for Juveniles Convicted of First-Degree Murder

Erin D. Knight

In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender.  The United States Supreme Court in Miller v. Alabama held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as “cruel and unusual punishment” when applied to juveniles under the Eighth Amendment.  In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights.  As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years.  In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment.  The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses.

This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles.  This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen.  Finally, this Note will analyze the extended protections created under Article 26 and the SJC’s scrutiny of the Massachusetts General Court’s (MGC) sentencing schemes.

Read the full Note here.

Are You Afraid of the Dark?: How the New York Attorney General Is Shedding Light on Dark Pools and High Frequency Trading

Jordan M. Marciello

Until June 2015, there had been little legal action against the firms taking advantage of investors through high-frequency trading (HFT).  The New York Attorney General (NY AG), Eric Schneiderman, brought the first big case under a little-known state law from the 1920s, the Martin Act, which grants the NY AG the power to regulate and investigate securities fraud.  In efforts to boost investor confidence and ensure the markets work for the entire general public, Schneiderman hopes to stifle the fundamentally unfair situations that HFT has created at the expense of the rest of the market.

This Note aims to provide a useful overview of the development of the U.S. stock market and show how lawsuits, such as the one against Barclays, will shape the U.S. stock market’s future.  Part II of this Note will present a detailed assessment of HFT, relevant SEC regulations, and a history of the Martin Act.  Part III will discuss the current case against Barclays and how regulators should proceed in handling contemporary dark pool and HFT crises affecting the U.S. stock market and, in turn, its investors.  This Note advocates for an approach that seeks a balance between a free market economy and clear regulations, so as to avoid further market exploitation.

Read the full Note here.

Overdosing on Authority: Negative Side Effects of the FDA’s Proposal for Generic Label Changes May Include Increased Costs and Liabilities

Cassandra L. Santoro

Despite generic manufacturers’ forced reliance on brand-name warning labels, brand-name manufacturers are immune from liability for failure-to-warn or negligence claims arising from generic drugs.  In a majority of jurisdictions—as long as the drug that caused the injury was generic—brand-name manufacturers escaped negative judgments, even though they played an integral role in the initial development of the drug and its warning label.  On an issue of first impression, however, the California Court of Appeals in Conte v. Wyeth, Inc. rejected this traditional view and held that a brand-name manufacturer’s duty to warn extends to patients whose prescriptions are filled with the generic version of the drug.  Following the decision, three other courts adopted this minority position that brand-name manufacturers can be liable for injuries caused by the generic version of their drug.

On November 13, 2013, the Food and Drug Administration (FDA) proposed a new rule that would make it nearly impossible for courts to follow that minority view.  The new rule would allow generic drug manufacturers to update warning labels without waiting for the brand-name manufacturer to make changes.  This change in policy will have widespread consequences, both positive and negative, for consumers and manufacturers alike, including quicker safety updates for pharmaceuticals.  In November 2014, the FDA announced that it was delaying the finalized rule, which was to be published in December 2014, until the fall of 2015; by November 2015, instead of publishing the finalized rule, the FDA again delayed and stated it plans on issuing the final rule by July 2016.

This Note will explore the procedure for introducing new drugs and chronicle changes in manufacturers’ postmarket duties.  It will also explain the proposed rule for making changes to a drug’s warning label.  In Part II, this Note will examine how different courts handled liability issues between brand-name and generic drug manufacturers, and it will focus on the recent shift in liability to brand-name manufacturers for injuries caused by generic versions of their drugs.  In Part III, this Note will analyze the proposed rule’s effects on consumers, prescribing physicians, and drug manufacturers.  In conclusion, this Note will provide an overall impression of the proposed rule and further suggest that the FDA not finalize this rule as it is currently proposed.

Read the full Note here.

• We, the Class: What the Founding Generation Can Tell Us About Adequate Representation in Class Action Litigation, by E. Samuel Geisler & R. Jason Richards

  In many ways, Justice Story’s Bill of Peace stands as the keystone between the Founders’ demands for a fair trial, and later courts’ struggles to preserve judicial economy and fairness in class actions.  Years before Justice Story’s Commentaries on Equity Jurisprudence, Hamilton argued that courts of equity provided relief “in extraordinary cases, which are exceptions to general rules.”  Hamilton’s insistence on the value of chancellors foretells the flexibility future courts would require in accommodating class action litigation, especially where absent class members’ rights are adjudicated.

  . . .

  Hamilton’s insistence on the need for judicial flexibility, as implemented by Justice Story, should carry through with today’s judiciary. Consequently, courts must now take up the baton, applying—and sometimes adapting—Rule 23 safeguards in a way that negotiates the difficult balance between efficiency and fairness.  It is only then that courts can ultimately achieve adequate representation in the adjudication of non-identified, absent class members.

  Read the full Article here.

• Internet Minimum Advertising Price Policies: Why Manufacturers Should Be Wary When Implementing, by Alexander I. Passo

  It has become common practice for manufacturers to implement policies to prevent retailers from advertising products at prices lower than those set by the manufacturers. What many manufacturers do not realize, however, is the potential for antitrust claims that may follow. Specifically, Internet Minimum Advertised Price (IMAP) policies can be a serious pitfall for the unwary and unadvised. This area of antitrust law has recently undergone dramatic changes, though it has yet to become uniform across all fifty states. Consequently, manufacturers should evaluate, with due diligence, whether enforcing an IMAP policy on a retailer is acceptable in each individual state before acting.

  Read the full Article here.

Symposium—Student Loans

• Foreword, by Rohit Chopra

  “Fifty years ago, President Lyndon B. Johnson signed the Higher Education Act into law as part of his Great Society agenda.  He said, “[e]ducation in this day and age is a necessity.”

  . . .

  Without market transparency and rigorous analysis, our work to preserve the goal of ensuring a better life for everyone who pursues a college degree will go unfulfilled.“

  Read the full Foreword here.

• Remarks as Prepared for Delivery by Senator Elizabeth Warren, March 12, 2014

  . . . First, we should end the practice of profiting from student loans, period.  Second, bankruptcy protections on student loans should be reinstated.  This will protect struggling students.  And third, give colleges some “skin in the game” when it comes to student debt. When students default, they feel the pain, and so do the taxpayers who may ultimately have to pick up the bill.  Colleges should feel some of that pain too.  And it should affect the colleges who are taking on lots and lots of students who are not repaying their debts.  And fourth, refinance student loans to wring some of the profits out of the system and put the money back in the pockets of young borrowers.  We’ve got to do this.

  Read Senator Warren’s remarks in their entirety here.

• Student Loan Debt in Bankruptcy: An Empirical Assessment, by Daniel A. Austin

  Education loan debt in the United States now stands at approximately $1.2 trillion.  Some thirty-nine million Americans, nearly 20% of U.S. households, owe student loans.  Student loan borrowing has mushroomed in recent years.  In 1990, students borrowed $11.7 billion to fund their educations.  By 2013, students took out $114 billion in new loans.  Student loans are by far the fastest growing component of non-housing consumer debt.  For example, in the fourth quarter of 2013, U.S. households incurred $82 billion in debt (exclusive of housing debt), which is a 3.3% increase from the previous quarter.  Of this amount, $53 billion (65%) was student loan debt.  In contrast, auto loans and credit card debt accounted for only $29 billion.

  The rise in borrowing for higher education has been matched by a rise in student loan debt as reported by debtors in consumer bankruptcy cases. This study presents empirical data regarding the growth of student loan debt in consumer bankruptcy.

  Read Professor Austin’s Article here.

• Student Debt: What We Still Need To Know, by Dr. Sandy Baum

  What we think about student debt may be very different from what we know about student debt. And there is much more that we should know.  Framing the issues in a way that facilitates an understanding of the real problems, rather than just the startling headlines, is the first step toward solving the problem.  We should ask the right questions and work toward gathering the information we need to assure that student loans play a positive role in improving access to quality educational opportunities.  We should seek constructive ideas for mitigating existing difficulties rather than creating panic about a situation that is much more complicated than the headlines suggest.

  Read Professor Baum’s Article here.

• Missing Data: Focusing on the Wrong Factors Could Contribute to Student Loan Distress, by Paul Combe & Julie Ryder Lammers

  You get what you measure.  The federal government tracks data on student loans with an emphasis on total indebtedness and default rates, and as a result, those two data points are the main influencers of the policy debate surrounding student debt.  In order to change the focus of the discussion and to increase student repayment success, there must be a push to collect and publish data on the entire range of student loan repayment statuses, including delinquency, deferment, forbearance, and repayment.

  Read the full article here.

• How Risk-Based Loans Would Help Students Achieve Better Outcomes, by Stephen Crawford & Robert Sheets

  This Article [argues] that the widely recommended expansion of income-based repayment will not fix many of the federal student loan system’s serious problems, unless complemented by a more comprehensive income-based approach. Income-based repayment alone does not address the tendencies of students to over-borrow or under-match, the inclination of institutions to raise prices, or the likelihood loan forgiveness will become very expensive. The more comprehensive income-based approach that we propose incorporates the use of “choice architecture,” including variable, risk-based financial incentives that tie expected income to loan decisions throughout the loan cycle.

  Read the full article here.

• Beyond Title IV: The Emergence of Private Student Loan Lending and a Profit-Driven System, by Justin A. DeAngelis

  Private student loan lending is disproportionately concentrated among nontraditional students who often borrow in large amounts and borrow before exhausting other federal aid. Borrowers are facing increasingly aggressive collection efforts while receiving little in the way of advocacy or relief.  The continuing high default rates and the lack of meaningful repayment options raise concerns that lessons from the recent past have not been learned, as investor demand for SLABS has once again begun to grow.  Further regulatory reforms would protect investors from market instability and illiquidity caused by rising borrower defaults.

  Read the full article here.

• State Variation of Student Loan Debt and Performance, by Wenhua Di & Kelly D. Edmiston

  Most discussions about student loans have centered on national trends, but student loan debt and performance vary widely among borrowers and across geographic lines.  In this Article, we focus on the geographic variation of student loan debt and delinquency rates.  The purpose of this analysis is twofold.  First, a state-level analysis may shed light on consumers’ decisions to take out student loans and how to repay them.  While there is limited information available at the level of the individual borrower, looking instead at state-level data may reflect the circumstances individuals face.  Second, an understanding of how state-level support for higher education influences student loan borrowing and performance may inform student loan disbursement and repayment policies, as well as other higher education policy decisions.

  Read the full article here.

• The Cost of Opportunity: Student Debt and Social Mobility, by Daniela Kraiem

  Changing how we talk about higher education will not magically create legal and regulatory change overnight, but it will at least show that relying on student loans is not inevitable or unavoidable. It will lead us away from accepting that some students will be winners, while the rest will lose social mobility in a horrible gamble. It will open space for a regulatory framework that helps us to meet our collective goals: a vibrant, socially mobile society in which higher education leads to innovation, supports the production and preservation of knowledge, and ensures that all people have the tools they need to meet their full potential.

  Read the full article here.

• Thought and Advocacy About Student Debt: Representation of Low-Income Borrowers in Law School Clinical Programs, by Ann Shalleck

  Law school clinical programs offer an important site for examining multiple frameworks for understanding the complex phenomenon of student debt.  Student debt can be approached as an issue of consumer debt, access to education, economic mobility, or the nature of public responsibility for higher education, among other possibilities.  Each framework implicates different social and political institutions and related legal regimes.  Each framework prompts lawyers to think about different legal strategies and take different kinds of actions. Problems for low-income students are understood in different ways depending upon the framework used. Solutions get evaluated in different terms.

  Read the full article here.

As part of the Donahue Lecture Series, hosted by the Suffolk University Law Review, James Bamford, a New York Times Bestselling Author and columnist for Foreign Policy Magazine, discussed the history and scope of the NSA’s surveillance practices.  In case you missed Mr. Bamford’s lecture, entitled Espionage, Eavesdropping, Edward Snowden and the Foreign Intelligence Surveillance Act, you can watch it in its entirety here.  Suffolk University Law Review extends a thank you to Mr. Bamford for taking the time to interact with the Suffolk University Law School community.

The 2015-2016 Donahue Lecture Series will continue on March 3, 2016, when the President of the American Civil Liberties Union (ACLU), Susan N. Herman, will come to Suffolk University Law School to discuss civil liberties in the context of the War on Terror.  Ms. Herman has been the President of the ACLU since 2008 and has appeared on NPR, PBS, CSPAN, NBC, and MSNBC.  Her most recent book is Taking Liberties: The War on Terror and the Erosion of American Democracy, published in 2011.  We hope to see you there!

Only two weeks after Ms. Herman’s lecture, the 2015-2016 Donahue Lecture Series will come to a close when Aloke Chakravarty, a federal prosecutor involved in the investigation and prosecution in the Boston Marathon bombing case, will speak.  Stay tuned for more information.