The False Hope of Proposed Rule 37(e): Why It Will Not End Data Producers’ Over-Preservation Habits

Stanley Richards

Saturday, April 19, 2014 - 11:45pm

Proposed Rule 37(e) of the Federal Rules of Civil Procedure is the latest effort to respond to the tendency of large data producers to over-preserve electronic information as a protection against the common law of spoliation sanctions and procedural rules regarding electronic discovery. The proposed rule’s failure to properly differentiate a breach of the duty to preserve from bad faith, however, threatens to negate its otherwise promising reforms.

SCOTUS Short Title Turmoil: Time for a Congressional Bill Naming Authority

Brian Christopher Jones

Saturday, December 14, 2013 - 12:15am

This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.

The Cost of Freedom: Using the Tax Power to Limit Personal Arsenals

Asha Rangappa

Monday, September 23, 2013 - 2:15pm

This article suggests that the federal government can use its taxing power to make it more expensive to build personal arsenals. Specifically, I argue for an incremental excise tax, which would be imposed on each successive gun after the initial purchase, which would be tax-free. I believe this approach would offer two advantages.  First, given the current constitutional landscape, such a tax would be much harder to challenge than a restriction on gun ownership, which directly implicates the Second Amendment. Second, an incremental tax would distribute the costs of arsenals in proportion to the public safety risk created by each individual gun owner. A tax could be implemented with the adoption of universal background checks without limiting an individual’s choice to own multiple weapons.

Regulation E’s Remittance Definition Clarified: A Proposal to Bring Mobile Payments Into the Third-Party Payment Services Exclusion

Colin C. Richard

Monday, September 23, 2013 - 1:30pm

A discrepancy in the guidance accompanying the Consumer Financial Protection Bureau’s (“CFPB”) new “remittance transfer” rule may unnecessarily apply regulatory provisions to certain mobile payments, potentially raising the barrier to adoption of this new technology. The CFPB recently issued a final rule to implement section 1073 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The rule and its accompanying guidance exclude in-person payment card transactions, but fail to exclude functionally-equivalent mobile payments. A simple regulatory solution could both reduce obstacles to the development of an efficient payment system and preserve necessary consumer protections. By drawing careful distinctions between the traditional remittance transfer and the in-person mobile payment made abroad, this article suggests that the guidance should be amended to explicitly exclude functionally-similar mobile payments.

Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County

Michael Ellement

Saturday, September 7, 2013 - 11:45am

In the wake of the Supreme Court’s decision in Shelby County, voting rights advocates should be cautiously optimistic that the Voting Rights Act’s “bail-in” process, left intact by that decision, can fill the void left open by the Court’s rejection of the preclearance coverage formula. Although statutory change may still be possible and desirable immediate attention should be paid to provisions currently in effect and capable of instant application. The bail-in provision satisfies the constitutional requirements laid out by the Shelby County Court, is immediately available, and, if utilized, represents the remedial option closest to the previously utilized § 5 preclearance structure.

The Restricted Firearms License: A Proposal to Preserve Second Amendment Rights and Reduce Gun Violence in the United States

Egon D. Cohen & Kristina M. Johnson

Wednesday, May 1, 2013 - 2:30pm

In the wake of the tragic shooting at Sandy Hook Elementary School in Newtown, CT, President Obama and others have called for legislative measures to combat gun violence. So far, most of these proposals have focused on three principal approaches: (1) making all firearms transfers subject to National Instant Criminal Background Check System (NICS) approval, (2) limiting firearm magazine capacity, and (3) banning models of semi-automatic firearms that possess certain “military purpose” features.

We strongly support the first of these approaches, which would eliminate the “gun show loophole” and require background checks for private party firearm sales. Instead of bans on magazine capacity and “military purpose” features, however—bans which together are commonly known as an “Assault Weapons Ban” (AWB)—we propose a five-year, renewable “Restricted Firearms License” program for the ownership of handguns, centerfire semi-automatic rifles, and semi-automatic shotguns.

The “Collection Gap” Explained: A White-Collar Practitioner’s View

Andrew Friedman

Friday, October 5, 2012 - 12:00pm

Ezra Ross and Martin Pritikin’s well-researched article regarding the collection of fines and penalties imposed on corporate offenders answers the question of what happens after the enforcement action ends—the government does not collect the vast majority of corporate enforcement penalties imposed. In this Essay, I address some of the practical realities of enforcing corporate penalties. First, I provide a different explanation than Ross and Pritikin for the “collection gap”—that prosecutors and other government enforcers are highly motivated to impose high penalties but far less motivated to collect them. Second, I address some significant practical reasons why the government appears to place a low priority on collecting penalties—reasons that Ross and Pritikin have arguably under-emphasized, such as the existence of alternative nongovernmental remedies. Third, I agree to some extent with Ross and Pritikin’s observation that procedures already in place could, if the government were so inclined, be used to conduct more robust and effective collection activity. Finally, I suggest that narrowing the “collection gap” might occur just as effectively through reforms in how the government and the courts assess financial penalties as opposed to developing alternative collection strategies.