Law Commons^™

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert

William & Mary Bill of Rights Journal

Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …

The Kavanaugh Court And The Schechter-To-Chevron Spectrum: How The New Supreme Court Will Make The Administrative State More Democratically Accountable, Justin Walker

Indiana Law Journal

In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch

stack of paper. But in the same year, federal administrative agencies promulgate

80,000 pages of regulations—which makes an eleven-foot paper pillar. This move

toward electorally unaccountable administrators deciding federal policy began in

1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than

elected representatives, unelected bureaucrats increasingly make the vast majority

of the nation’s laws—a trend facilitated by the Supreme Court’s decisions in three

areas: delegation, deference, and independence.

This trend is about to be reversed. In the coming years, Congress will …

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

Articles

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …