Category: Notes

Breaking Bad Sentencing Habits: How State Courts’ Retroactive Modifications of Probation Terms Affect Federal Mandatory Sentencing – Note by Andrew Tan

From Volume 86, Number 5 (July 2013)
DOWNLOAD PDF

In 2006, Eduardo Alba-Flores was arrested for importing methamphetamine into the country from Mexico. Importing methamphetamine carries a ten-year minimum sentence, but first-time offenders who meet certain conditions are exempt from this mandatory minimum. Unfortunately, Alba-Flores was ineligible because he was on probation at the time for driving with a suspended license earlier that year. Alba-Flores convinced the state court to retroactively modify his probation term so that he served less than a year of it, hoping that this would make him eligible for an exemption from the mandatory ten-year sentence his drug crime carried. In 2009, the Ninth Circuit held that, because he was in fact on probation when he committed the federal drug crime, the state’s retroactive change did not affect his mandatory minimum sentence eligibility. As of the time this article was written, Alba-Flores is still serving his ten-year sentence.

 

86_1079

Just Another Brown-Eyed Girl: Toward a Limited Federal Right of Publicity Under the Lanham Act in a Digital Age of Celebrity Dominance – Note by Susannah M. Rooney

From Volume 86, Number 4 (May 2013)
DOWNLOAD PDF

Imagine this: Elle, an attractive blonde, brown-eyed female in Boston becomes an overnight celebrity for her YouTube video series, “Chasing Rings,” in which she bemoans the modern dating world in the form of her self-produced rap songs. In each video, Elle wears a different pink shirt. As her video blog continues to gain popularity, a New York clothing company develops an online advertising campaign supporting the legalization of gay marriage. The campaign is displayed on online news and social networking sites. One of the men featured in the ad wears a long blonde wig, has large brown eyes, and wears a pink tank top; the other is dressed in traditional male garb. The ad states, “He liked it, but he couldn’t put a ring on it.” The phrase, closely paralleling a well-known pop lyric, is used with pop celebrity Beyoncé’s permission. Elle, a law student, decides that this ad appears to reference her and decides to sue under her state-law right of publicity. Since the ads were displayed nationally, she hires an attorney to sue under Indiana law because she thinks she has the best chance of winning her case in that state. After initial discovery, the gay rights campaign agrees to settle the case for five million dollars because it thinks that Elle is likely to prevail. The ad campaign is shut down and the company is forced to downsize.

 

86_921

Waiving Farewell Without Saying Goodbye: The Waiver of Fiduciary Duties in Limited Liability Companies in Delware, and the Call For Mandatory Disclosure – Note by Darren Guttenberg

From Volume 86, Number 4 (May 2013)
DOWNLOAD PDF

You are approached by a dear friend who says, “I have a terrific business concept—diamond mining in Siberia. Just a pickaxe, divining rod, and some elbow grease. It’s going to be terrific. The problem is, I need a little bit of cash to get it off the ground. Any interest? I can offer you a share of the company.” Although you know little about Siberia or investing, you decide to invest. He sends you a sixty-five-page LLC operating agreement for Sub-Zero Mining, LLC (“it’s mostly boilerplate”), which you review briefly and sign. You send it back to him, along with a check for your investment.

Six months later, having heard nothing from your friend, you run into him, and he is driving a brand-new sports car. You ask him, “How did the mining in Siberia go?”

“It was terrific,” your friend explains. “I have more money than I know what to do with!”

Naturally, you ask for your share.

“Oh no,” explains your friend. “You see, when I arrived, I realized that it would be too costly to share profits with you. I had the money to do it myself, so I started Arctic Mining LLC, and I was on my way!” When you ask how he could possibly think it was okay to start a new mining company without your consent, he explains that on page thirty-four of Sub-Zero’s operating agreement, it clearly states that all relationships will be at “arms’ length terms and conditions,” which he says means he owed no fiduciary duties (the fundamental duties of diligence or loyalty) to you as an investor and was free to create, without your permission, a competing company.

 

86_869

Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture – Note by Kristen L. Johns

From Volume 86, Number 3 (March 2013)
DOWNLOAD PDF

Fish might be considered “brain food,” but there is nothing smart about the way the United States currently manages its seafood production. Although the U.S. government has long promoted the health benefits of products from the sea—even urging Americans to double their seafood intake—it has fallen far behind in developing a domestic source for this seafood. Currently, the United States relies on an almost primitive method for domestic seafood production: taking animals found naturally in the wild. However, this approach is no longer sustainable: most federally managed capture fisheries are either stable or declining, with forty-eight currently overfished, and forty subject to overfishing in 2010. What seafood the United States does not take from its own fisheries it imports; in 2011 the United States imported as much as 91 percent of its seafood supply. Fortunately, there is a way for the United States not only to ease the pressure on traditional fisheries—allowing them to recover—but also to provide a significant domestic source of seafood products: through the development and promotion of its domestic offshore aquaculture industry. However, this industry should not be allowed to expand free from regulation, as offshore aquaculture may have serious consequences for both marine and human environments.

 

86_681

The Good, the Bad, and the Ugly: The Political Economy and Unintended Consequences of Perpetual Trusts – Note by Daniel J. Amato

From Volume 86, Number 3 (March 2013)
DOWNLOAD PDF

President Obama’s 2012 and 2013 budget proposals contained similar provisions to tax perpetual trusts ninety years after their creation at the maximum Generation-Skipping Tax rate of 55 percent—a move consistent with arguments by law professors and the American Law Institute. These proposals went little noticed except by investment publications, which advised individuals to create perpetual trusts before they could be taxed. Despite the support of the legal academy, the president’s proposal stands little chance of success. Nor should it come as a surprise that a tax proposal with little chance of success was proposed at the beginning of an election cycle—instead, as this Note explains, it should be expected.

Perpetual trusts, facilitated by the 1986 enactment of the Generation-Skipping Tax Exemption (“GST Exemption”) and the subsequent repeal of the rule against perpetuities (“RAP”) in most states, allow individuals to place money into trusts where it grows free of intergenerational transfer taxes forever. Prior to the 1986 tax reform, individuals could use successive life estates in trust to transfer money to their grandchildren without triggering the estate tax. To close this loophole, Congress enacted the Generation-Skipping Tax (“GST”) in 1986 to tax transfers to individuals more than one generation removed, and the GST Exemption to soften the taxpayer burden.

 

86_637

Proposition 9, Marsy’s Law: An Ill-Suited Ballot Initiative and the (Predictably) Unsatisfactory Results – Note by Ryan S. Appleby

From Volume 86, Number 2 (January 2013)
DOWNLOAD PDF

On November 4, 2008, California residents voted on twelve statewide ballot initiatives. Seven initiatives were approved, including Proposition 9: the “Victims’ Bill of Rights Act of 2008: Marsy’s Law.” It received the fourth fewest total votes of the twelve ballot initiatives, and was dwarfed in total spending compared to other bills such as Proposition 8, the “California Marriage Protection Act.” Despite passing without significant publicity, Marsy’s Law instituted broad legal reforms. It altered the California Constitution, added two sections to the California Penal Code, and amended two sections of the California Penal Code. The Proposition added a Victims’ Bill of Rights to the California Constitution; expanded the role of victims at every stage of prosecution, conviction and postconviction; modified the process of parole hearings; sought to increase prison sentences; and altered the procedure for parole revocation.

Marsy’s Law was passed via ballot initiative, a form of direct democracy guaranteed by California’s Constitution. The initiative power has existed since 1911, when the California Constitution was amended to provide that “the people reserve to themselves the powers of initiative and referendum.” It was sparked by a backlash against a corrupt legislature bowing to the demands of monopolistic railroad owners. Direct democracy appealed to the populist movement of the early twentieth century and sought to curb corrupt government, reduce the influence of money in politics, and restore democracy for the people.

 

86_321

Is Financial Regulation Structurally Biased to Favor Deregulation? – Note by Carolyn Sissoko

From Volume 86, Number 2 (January 2013)
DOWNLOAD PDF

In the early months of the financial crisis that started in August 2007, Citigroup suddenly had to take onto its balance sheet $25 billion of assets–which, due to subprime mortgage exposure, were worth on the market only a third the amount that Citigroup was required to pay for them. The reason for the appearance of these troubled assets on the bank’s balance sheet was a liquidity guarantee provided by Citibank from the time it originally sold the assets to protect short-term lenders from the possibility that their debt could not be refinanced at maturity. The Financial Crisis Inquiry Commission would conclude that such guarantees helped “bring the huge financial conglomerate to the brink of failure.”

The assets in question were collateralized debt obligations (“CDOs”), which package together a large number of loans and other debt products and use the income from those loans to pay returns to the investors in the CDOs. It is clear, however, that not all of the “loans” underlying Citibank’s CDOs were actual loans. Some of them were financial contracts called derivatives that promised payments based on the performance of a specific set of actual loans. That is, some of the underlying assets were not loans, but simply represented the promise of one financial institution to make payments to another.

 

86_365

Cyberstalking, Twitter, and the Captive Audience: A First Amendment Analysis of 18 U.S.C. 2261A(2) – Note by John B. Major

From Volume 86, Number 1 (November 2012)
DOWNLOAD PDF

This Note will analyze how the cyberstalking statute applies to a particular form of new media, Twitter, within the framework of a First Amendment analysis. While the analysis within this Note is limited to the interplay between Twitter and the cyberstalking statute, the principles discussed, policies weighed, and doctrines explored also apply to the regulation of distressing speech on the Internet generally. Part II examines Twitter, focusing on how Twitter users interact and the effect this has on First Amendment principles. Part III looks closely at the crime of cyberstalking and the cyberstalking statute. It explores the definition of cyberstalking, the difficult nature of cyberstalking regulation, and the harms cyberstalking can cause. It then discusses the cyberstalking statute (including the 2006 amendment at issue in Cassidy), how courts have construed the statute, and what speech the statute criminalizes. Part IV applies First Amendment doctrine to the cyberstalking statute’s regulation of Twitter. This part analyzes the following: how the First Amendment applies to Internet fora; vagueness and overbreadth challenges; the protection of speech covered by the statute; what level of scrutiny should apply to the statute; whether the statute serves to protect a “captive audience”; and how the statute holds up under each level of scrutiny. Further, after laying out these First Amendment principles, Part IV critiques the district court opinion issued in the Cassidy case. Part V proposes potential changes to the statute to ensure it does not run afoul of the First Amendment. Part VI concludes by refocusing on general First Amendment principles and the interests at issue in this case, and it emphasizes that protecting the captive audience may be the most appropriate role for cyberstalking laws to serve.

 

86_117