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September 24, 2018

McDonnell v. United States: Legalized Corruption and the Need For Statutory Reform

In 2016, the Supreme Court granted certiorari to former Governor Bob McDonnell’s public corruption case. In 2014, a federal jury found McDonnell guilty of eleven counts of public corruption for accepting over $175,000 worth of gifts and loans from Virginia businessman Jonnie Williams. The conviction was affirmed by the Fourth Circuit. In overturning the Fourth Circuit, the Supreme Court significantly narrowed the definition of an “official act” in the federal bribery statute, which is the controlling statute in most public corruption cases. This Comment argues that the Court’s decision unduly narrows the bribery statute’s scope to punish only the most egregious acts of public corruption. This Comment suggests drawing upon a hybrid between the agency and corporate duties of loyalty in private law to amend the federal bribery statute and provide a more practicable standard by which courts can distinguish between regular constituent services and unlawful public corruption.

May 31, 2018

Cheers to Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market at the expense of independent craft beer and consumer choice, evolving commercial speech doctrine threatens to invalidate them due to a trend towards increased protections for commercial speech. Without these regulations, and many others like them, nothing would restrain global corporate brands from engaging in illegal pay-to-play conduct to regain lost market share and force independent craft beer from the shelves and tap handles.

Editor's Note:Thank you to Paige Davidson and Jessica Gandara for powerful research assistance and insights.

May 17, 2018

Leveraging Social Science Expertise in Immigration Policymaking

The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes by suggesting administrative, political, and judicial mechanisms that would encourage policymakers to leverage expertise and curb irrationality in immigration policymaking. 

April 20, 2018

The Second Amendment in the Street

Commentators have predicted that the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago could hamper police efforts to seize guns on the street. Many police officers have understood the Fourth Amendment to permit stopping and frisking anyone who appears to possess a handgun in public. But that understanding is rooted in laws that made handgun possession a crime, the kinds of laws struck down in Heller and McDonald. The doctrinal collision that this appears to set up between the Second and Fourth Amendments will likely be less meaningful on the streets—particularly in low-income, minority neighborhoods—than commentators suggest. This is because the Fourth Amendment affords police many opportunities to dodge the collision. The aggressive forms of policing associated with gun interdiction in minority neighborhoods will likely continue, but now with added constitutional gravity. If gun rights advocates care about the fair distribution of Second Amendment rights, they should worry about the formal and practical opportunities the Fourth Amendment creates for the aggressive policing associated with firearm interdiction in poor minority communities. These advocates should make police reform and racial justice a core part of their agenda, something they have not done to date.