Volume 82, Number 1 (November, 2008)
Is the Family at Odds with Equality? The Legal Implications of Equality for Children
Article by Anne L. Alstott
The family seems to pose an insoluble dilemma for a liberal society, because it pits liberal values of freedom and equality against each other. When family life privileges adult freedom, children’s life chances become unequal due to their parents’ different choices and unequal circumstances. But any effort to enact equality of opportunity for children, it seems, would demand such heavy-handed state regulation of the family that it would end family life as we know it. This is an old problem, a...
Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards
Note by Brian Cook
Though largely unnoticed by the public, March 1, 2007, marked the transition from traditional analog television to digital broadcast television (“DTV”), a move some have characterized as the most significant change to the television broadcast industry since color replaced black and white. On that date, Federal Communications Commission (“FCC”) regulations went into effect mandating that all televisions sold in the United States contain a digital tuner capable of receiving DTV broadcast signals....
How Courts Can Protect State Autonomy from Federal Administrative Encroachment
Article by Scott A. Keller
Unlike the federalism cases typical of the Rehnquist Court, modern federalism cases will not involve interpretation of the Commerce Clause or the Tenth Amendment, particularly after Gonzales v. Raich refused to expand the Commerce Clause to protect state autonomy. Instead, modern federalism cases will involve basic statutory construction. The Supreme Court has become increasingly interested in cases dealing with the intersection of federalism and statutory construction, deciding two such cases d...
Ganging Up on RICO: Narrowing Gonzalez v. Raich to Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act
Note by Noelle Formosa
Almost four years after the Supreme Court decided Gonzales v. Raich, its uncertain effect on as-applied constitutional challenges remains visible in many lower federal court decisions. Circuit courts struggle to determine when and how to apply Raich’s “broad regulatory-scheme principle,” which, when liberally construed, states that Congress may regulate any intrastate activity so long as the regulation is rationally included within a broad statutory scheme. Lower federal courts are faced with un...
The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey
Postscript (Comment) by Patrick J. Glen
On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face...
Interpretive Bulletin 08-1 and Economically Targeted Investing: A Missed Opportunity
Postscript (Comment) by Edward A. Zelinsky
In the waning days of the Bush administration, the Department of Labor (“DOL”) issued Interpretive Bulletin 08-1 (“IB 08-1”) concerning the legal obligations of employee benefit plan fiduciaries when they invest the plan assets they control. Specifically, IB 08-1 addresses plan fiduciaries’ duties in the context of “economically targeted investing,” the investment of plan assets in pursuit of benefits for third parties rather than for plan participants and their beneficiaries. IB 08-1 revises pr...
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