In Stone ex rel. AmSouth Bancorporation v. Ritter, two important strands of Delaware corporate law converged; namely, the concept of good faith and the duty of directors to monitor the corporation’s employees for law compliance. As to the former, Stone put to rest any remaining question as to whether acting in bad faith is an independent basis of liability under Delaware corporate law, stating...
No Slavery Except as a Punishment for Crime: The Punishment Clause and Sexual Slavery
This Article is about the hidden complexity of the textual exception to the Thirteenth Amendment. The amendment mandates that there shall be no slavery “except as a punishment for crime.” At first glance, the exception seems insignificant: The drafters sought to free the slaves, but did not want to curtail the power of state governments to sentence criminals to imprisonment or hard labor. Some...
An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure
In this Article, I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80 percent of the output of the federal courts of appeals. The recent amendment to Federal Rule of Appellate Procedure 32.1(a), requiring that all circuits allow citation to NPOs, has provoked considerable debate about how, and whether, to issue written dispositions in the class of cases...
Reorienting the Debate on Presidential Signing Statements: The Need for Transparency in the President's Constitutional Objections, Reservations, and Assertions of Power
Presidential signing statements had been considered relatively obscure executive policy tools that have been used since at least the time of President Monroe. Their usage by former presidents aroused little attention until highly publicized reporting alleged that President George W. Bush had issued an unprecedented number of signing statements relative to his predecessors. The intense debate that...
Does Practice Make Perfect? An Examination of Congress's Proposed District Court Patent Pilot Program
Over the past few years, patent law reform has been a hot topic of congressional debate. The cost and complexity of patent litigation and the frequency with which district judges are getting reversed on questions of claim construction are often cited as cause for alarm. Heeding the calls for reform, a patent pilot program for district courts was recently unveiled in the U.S. Congress in an...
The Internet and the Project of Communications Law
The Internet offers the potential for economic growth stemming from online human communications. But recent industry and government actions have disfavored these possibilities by treating the Internet like a content-delivery supply chain. This Article recommends that the Internet be at the center of communications policy. It criticizes the nearly exclusive focus of communications policy on the...
Overworking the Presumption of Sanity: Clark's Use of Mental Disease Evidence to Negate Mens Rea
The presumption of sanity is a concept in criminal law used to allocate burdens relating to the insanity defense. In Clark v. Arizona, the U.S. Supreme Court relied on the presumption to affirm the exclusion of evidence introduced to negate mens rea. This Comment discusses the problems with using the presump¬tion to exclude evidence from mens rea determinations and examines other ways to regulate...
State Statutes Limiting the Dual Sovereignty Doctrine: Tools for Tribes to Reclaim Criminal Jurisdiction Stripped by Public Law 280?
Tribal sovereignty suffered greatly by the 1953 passage of Public Law 280, which gave certain states jurisdiction over the Indian country within their borders. However, recent cases show that tribes can preempt this state jurisdiction, and thereby reclaim some measure of sovereignty, if they prose¬cute crimes first—so long as the surrounding state has a statute abrogating the dual sovereignty...