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The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It

Barry L. Johnson

One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct.  One would be wrong, however, at least so far.  The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender’s sentence is still permissible under the now-advisory Guidelines.  While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon.

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War and Justiciability

Stephen I. Vladeck

[O]ne may wonder why now is an especially appropriate moment to reflect on the role of the federal courts in civil suits challenging military operations, even more so given the winding down of hostilities in Afghanistan and the settled nature of the judicial role in the Guantánamo habeas litigation. But the prompt for this paper lies in two developments that are relatively recent: the proliferation of the use of private military contractors to conduct traditional military functions (and the concomitant rise of civil suits challenging such conduct), and the blurring of conventional conceptions of the “battlefield” (and, as in the counter-piracy context, of the line between law enforcement and combat operations). For better or worse, these developments have been—and will likely continue to be—litigation-provoking, prompting an ever-growing array of courts to have to consider these same issues in an ever-growing array of contexts. Thus, this paper attempts to provide a more coherent and convincing explanation for when judicial reticence to intervene in such disputes is and is not appropriate, hopefully before the doctrine becomes completely unmoored from its analytical and normative justifications.

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How the SEC’s Crowdfunding Rules for Funding Portals Save the Two-Headed Snake: Drawing the Proper Balance Between Integrity and Cost

Patrick Archambault

The CROWDFUND Act required the SEC to adopt rules to facilitate equity crowdfunding.  Although the final rules do not go into effect until 180 days after publication in the Federal Register, preliminary observations can be made.  Both the CROWDFUND Act and the SEC’s final rules impose restrictions for intermediaries, particularly for the newly introduced funding portals.  These restrictions raise the question of whether or not the SEC’s rules create an appropriate balance between adequately protecting unaccredited investors and allowing funding portals to act as gatekeepers.  The specific concern to investors in donating capital to these funding portals is that investments may be subject to fraud.  Due to funding portals’ novelty, this Note pays special attention to funding portals in the context of the SEC’s final rules.

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Congressional Funding Speaks Louder than Presidential Words: Cold, Hard Cash Versus the Recognition Power

Eliza S. Bailey

In light of presidents’ consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive’s contemporary recognition power no longer harbors any significance.  In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive’s hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem.  For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas.  Therefore, as the Supreme Court does not address the Executive’s financial recognition of Israel, but rather states the Executive’s spoken recognition is at odds with Section 214(d) in Zivotofsky’s case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy.

This Note will address the U.S. military funding at odds with the Supreme Court’s ruling that the Executive’s claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must “speak with one voice” on the matter of Israeli-Palestinian foreign policy.

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If the Shoe Fits: Sizing Up the Applicability of IvI Exclusions to the FDIC

Julianne DeLeo

Holes in the bank’s D&O policy’s coverage are perilous.  They may require the directors to pay out-of-pocket damages, and the FDIC may forego payment.  One of the common gaps that exists in the D&O policy’s coverage is the Insured v. Insured (IvI) exclusion.  Generally, the IvI exclusion excuses the insurer from payment when a claim is brought by, or on behalf of, an insured party against an insured party.  This Note will consider the circumstances in which an IvI exclusion to a D&O policy may excuse an insurer from coverage when the FDIC brings claims against the directors of a failed bank.

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Brought Back to Life: Massachusetts Supreme Judicial Court Resuscitates Parole Eligibility for Juveniles Convicted of First-Degree Murder

Erin D. Knight

In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender.  The United States Supreme Court in Miller v. Alabama held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as “cruel and unusual punishment” when applied to juveniles under the Eighth Amendment.  In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights.  As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years.  In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment.  The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses.

This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles.  This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen.  Finally, this Note will analyze the extended protections created under Article 26 and the SJC’s scrutiny of the Massachusetts General Court’s (MGC) sentencing schemes.

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Are You Afraid of the Dark?: How the New York Attorney General Is Shedding Light on Dark Pools and High Frequency Trading

Jordan M. Marciello

Until June 2015, there had been little legal action against the firms taking advantage of investors through high-frequency trading (HFT).  The New York Attorney General (NY AG), Eric Schneiderman, brought the first big case under a little-known state law from the 1920s, the Martin Act, which grants the NY AG the power to regulate and investigate securities fraud.  In efforts to boost investor confidence and ensure the markets work for the entire general public, Schneiderman hopes to stifle the fundamentally unfair situations that HFT has created at the expense of the rest of the market.

This Note aims to provide a useful overview of the development of the U.S. stock market and show how lawsuits, such as the one against Barclays, will shape the U.S. stock market’s future.  Part II of this Note will present a detailed assessment of HFT, relevant SEC regulations, and a history of the Martin Act.  Part III will discuss the current case against Barclays and how regulators should proceed in handling contemporary dark pool and HFT crises affecting the U.S. stock market and, in turn, its investors.  This Note advocates for an approach that seeks a balance between a free market economy and clear regulations, so as to avoid further market exploitation.

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Overdosing on Authority: Negative Side Effects of the FDA’s Proposal for Generic Label Changes May Include Increased Costs and Liabilities

Cassandra L. Santoro

Despite generic manufacturers’ forced reliance on brand-name warning labels, brand-name manufacturers are immune from liability for failure-to-warn or negligence claims arising from generic drugs.  In a majority of jurisdictions—as long as the drug that caused the injury was generic—brand-name manufacturers escaped negative judgments, even though they played an integral role in the initial development of the drug and its warning label.  On an issue of first impression, however, the California Court of Appeals in Conte v. Wyeth, Inc. rejected this traditional view and held that a brand-name manufacturer’s duty to warn extends to patients whose prescriptions are filled with the generic version of the drug.  Following the decision, three other courts adopted this minority position that brand-name manufacturers can be liable for injuries caused by the generic version of their drug.

On November 13, 2013, the Food and Drug Administration (FDA) proposed a new rule that would make it nearly impossible for courts to follow that minority view.  The new rule would allow generic drug manufacturers to update warning labels without waiting for the brand-name manufacturer to make changes.  This change in policy will have widespread consequences, both positive and negative, for consumers and manufacturers alike, including quicker safety updates for pharmaceuticals.  In November 2014, the FDA announced that it was delaying the finalized rule, which was to be published in December 2014, until the fall of 2015; by November 2015, instead of publishing the finalized rule, the FDA again delayed and stated it plans on issuing the final rule by July 2016.

This Note will explore the procedure for introducing new drugs and chronicle changes in manufacturers’ postmarket duties.  It will also explain the proposed rule for making changes to a drug’s warning label.  In Part II, this Note will examine how different courts handled liability issues between brand-name and generic drug manufacturers, and it will focus on the recent shift in liability to brand-name manufacturers for injuries caused by generic versions of their drugs.  In Part III, this Note will analyze the proposed rule’s effects on consumers, prescribing physicians, and drug manufacturers.  In conclusion, this Note will provide an overall impression of the proposed rule and further suggest that the FDA not finalize this rule as it is currently proposed.

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