Perpetuities in an Unequal Age

By: Jack H.L. Whiteley

Pathology Logics

By: S. Lisa Washington

Voter Due Process and the "Independent" State Legislature

By: Michael P. Bellis

The State Secrets Privilege: An Institutional Process Approach

By: Alexandra B. Dakich

Employer Tuition Assistance and the Implied Covenant of Good Faith and Fair Dealing

By: Jordan Ti Krieger

Rethinking the Reasonable Investor Standard

By: Alexandra Qingning Li

Two Birds With One Stone Through MDL Interlocutory Appeal: Lessons From Rule 23(f)

By: Jared Stehle

The Unreasonableness of Reasonable: Rethinking the Reasonable Investor Standard

By: Li, Alexandra | April 16, 2023

This Note explores the “reasonable investor” standard in light of recent developments in pandemic-era securities litigation. Scholars have long criticized the reasonable investor standard for determining materiality. Given the dramatic backdrop of the COVID-19 pandemic, the limitations of the standard are becoming ever more evident. This Note provides a brief history of the development of the current standard and highlights some of its problems through two recent COVID-19 securities fraud cases. This Note argues that the reasonable investor standard is no longer sufficient to protect investors. Through examining tort law and First Amendment jurisprudence, this Note differentiates between the “reasonable” and “average” persons and recommends replacing the reasonable investor standard with the average investor standard.

Employer Tuition Assistance: Current Approaches and the Application of the Implied Covenant of Good Faith and Fair Dealing

By: Krieger, Jordan T. | April 16, 2023

American corporations are increasingly expanding tuition reimbursement programs, potentially improving access to higher education for American workers. Yet, despite their increasing availability, only 2% of employees, as a percentage of those interested in pursuing further education, are utilizing these reimbursement programs. For those employees who do make use of these reimbursement programs, they may face unexpected challenges to accessing judicial remedies if a dispute arises.

This Note takes an interdisciplinary approach to first explore employee risks and employer incentives under tuition reimbursement programs. On the employee side, a worker risks premature termination by expressing an interest in tuition reimbursement because her request could be seen as an intent to leave her current role. Moreover, an employee incurs a risk of frustrated expectations if she first pays, or takes on debt to pay, for tuition and the company terminates her prior to reimbursement. On the other hand, an employer’s immediate profit incentives may not align with employee use of these programs, as employers may reasonably expect increased labor costs and reduced employee focus on her work.

With this theoretical background, this Note then investigates how current judicial doctrines apply to the adjudication of tuition reimbursement disputes. Given the strong presumption of employment relationships being at will, traditional contract and promissory estoppel doctrines are insufficient in resolving tuition reimbursement claims. Moreover, various federal and state statutes pertaining to antidiscrimination and employee benefits are equally insufficient for these purposes.

In light of these shortcomings, this Note advocates for the extension of the implied covenant of good faith and fair dealing into employment relationships when an employer offers a tuition reimbursement program. This would create parity in judicial treatment between commercial and employment contracts and privilege the objective expectations of both the employee and employer. Finally, this Note provides policy considerations as to why standardization of the implied covenant of good faith and fair dealing is preferable as a normative matter.

The State Secrets Privilege: An Institutional Process Approach

By: Dakich, Alexandra B. | April 16, 2023

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert this privilege. This trend is unsurprising given how courts evaluate national security issues, even where individual rights are at stake. Through the institutional process framework, illuminated by Professors Samuel Issacharoff and Richard Pildes, federal courts are reluctant to invalidate unilateral executive action absent a congressional statute addressing the challenged national security conduct.

Scholarship on the institutional process framework to date has primarily examined the judiciary’s role. This Note shifts the spotlight to Congress’s role in the institutional process framework. Congress should embrace its role in fostering interbranch institutional cooperation by speaking directly to courts regarding national security issues. Specific to the state secrets privilege in its post-Zubaydah and Fazaga form, Congress must provide an interbranch procedural framework by which courts can assess assertions of the privilege. As the best institution to incorporate valuable considerations about the purpose and flaws of the privilege, Congress can empower Article III courts to meaningfully review state secrets privilege assertions and restore executive accountability.

Nw. U. L. Rᴇᴠ.