Category Archives: Notes

Trix Are Not Just For Kids: The Supreme Court’s Clumsy Handling of the Public-Private Distinction and its Legislative Impact on Breakfast and Beyond

“Silly Rabbit, Trix are for kids.”  It is more than just a slogan: General Mills believes it is constitutionally protected speech under the First Amendment.  But if Trix are for kids, recent Supreme Court decisions granting expansive constitutional protections to … Continue reading

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Sanctioning Insurance Carriers for Bad-faith Litigation Practices: a Proposal to Change the “Named Party” Rule

It was three days before Christmas in 1996. Earnest and Eleanor Brown, a retired couple from Shinnston, West Virginia, were driving on the freeway. The retired couple had twenty-two children, seventeen of whom were adopted, many of them with special … Continue reading

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Asylum and Oral Argument: The Judiciary in Immigration and the Second Circuit Non-argument Calendar

Saidou Dia, a native of the Republic of Guinea, and Marwan Youssef Albathani, a Lebanese national, have likely never met. Both men were born in their native countries in the 1970s, both men were politically active in their native countries, and the lives … Continue reading

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Big Talk, Broken Promises: How Title I of the Americans with Disabilities Act Failed Disabled Workers

The Americans with Disabilities Act (“ADA” or “the Act”) was signed into law in July 1990 with much fanfare. President George H.W. Bush echoed Congress’s belief that it would level the playing field for the disabled in all facets of … Continue reading

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An Old Means to a Different End: The War on Terror, American Citizens . . . and the Treason Clause

In 2004, Supreme Court Justice Antonin Scalia, while dissenting in Hamdi v. Rumsfeld, stated that when the United States government accuses one of its own citizens of waging war against it, “our constitutional tradition has been to prosecute him in … Continue reading

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A Dangerous Discretionary “Duty”: U.S. Antidumping Policy Toward China

In an era of flourishing transitions from state controlled policies and economies to democratic governance, the United States foreign trade policy, particularly toward emerging market-oriented countries, may require adjustment to maintain the credibility of the United States as an important … Continue reading

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Judicial Enforcement of Arbitration Agreements: the Stay-Dismissal Dichotomy of FAA Section 3

The meaning of section 3 of the Federal Arbitration Act (“FAA”) has been the subject of substantial litigation and uncertainty. Section 3 applies to a suit or proceeding brought in court where the issues are referable to arbitration under an … Continue reading

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Respecting Intellectually Disabled Parents: A Call for Change in State Termination of Parental Rights Statutes

“Mentally retarded persons . . . are individuals whose abilities and behavioral deficits can vary greatly depending on the degree of their retardation, their life experience, and the ameliorative effects of education and habilitation.” So spoke the Supreme Court in … Continue reading

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Judicial Supervision of Campaign Information: a Proposal to Stop the Dangerous Erosion of Madison’s Design for Actual Representation

On September 4, 2005, less than one week after Hurricane Katrina devastated New Orleans and the Gulf Coast, and more than three years into an escalating quagmire in Iraq, Frank Rich facetiously paraphrased Secretary of Defense Donald Rumsfeld, writing, “for … Continue reading

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Business Necessity and Hostile Work Environment: an Evolutionary Step Forward for Title VII

So, imagine that you are a bright, young college graduate. You are also a female. The first interview that you get is with a new internet magazine that was launched only a few months ago. The job you are interviewing … Continue reading

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