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Note

Trending Towards Leniency: What Millenium Laboratories & In re Plavix Marketing Teach About the Future of the False Claims Act’s First-to-File Rule

Zachary Sizemore, Cornell Law School, J.D. 2021.

Part I of this Note will discuss the history and development of the FCA, including its original purpose and modern use, why Congress added the first-to-file rule, and how the provision traditionally operated to bar later-filed claims. Part II will discuss the First and Third Circuits’ case law and overall jurisprudence regarding the first-to-file rule. It will also illustrate the First and Third Circuits’ FCA jurisprudence as a whole by looking to how the First and Third Circuits decided certain other issues arising under or related to the FCA. Part III will then discuss the factors that led to the circuits’ decisions in Millenium Labs and In re Plavix Marketing. This includes a mix of both external factors—like the rulings of other circuits—and internal factors, like the First and Third Circuits’ jurisprudence: their continued leniency in cases involving the FCA and their case law signaling the eventual recharacterization of the rule as nonjurisdictional. Part IV will briefly extract some lessons that these decisions can teach about what to look for in determining how a circuit might interpret the rule going forward, and based on these, predict that the Ninth Circuit will soon join these circuits in holding that the rule is nonjurisdictional. The Note will ultimately conclude that the decisions were simply a product of the First and Third Circuits’ FCA case law and the fact that federal courts should be more lenient on plaintiffs bringing claims under the FCA.

Sep 2021

Note

Finding Benevolent Neutrality in Land Use: RLUIPA’s Equal Terms Provision and the Human Flourishing Theory of Property

Hun Lee, B.A., Catholic University of Korea, 2016; J.D., Cornell Law School, 2021.

This Note will examine the circuit courts’ different approaches to interpreting the Equal Terms provision and suggest that the provision should be interpreted from the perspective of property law rather than the current judicial framework, which is inapt to resolve the inherent tension underlying RLUIPA and First Amendment jurisprudence. The Note will first identify this tension in Part I by surveying the history of RLUIPA in relation to the evolution of First Amendment jurisprudence. Part II will analyze the different approaches that circuit courts have taken to interpret RLUIPA’s Equal Terms provision, concluding that existing judicial approaches and the commentaries thereof call for an alternative approach informed by principles of property law. Part III will introduce a property theory based on the concept of human flourishing, arguing that the theory can provide an effective interpretive framework that may resolve issues regarding religious land use such as the interpretation of RLUIPA’s Equal Terms provision.

Sep 2021

Article

Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception

Sabine Tsuruda, Assistant Professor, Queen’s University Faculty of Law.

This Article develops a theory of meaningful work to support an alternative to the ministerial exception that would permit religious organizations to hire like-minded employees, but only when doing so would not subvert the purposes of employment discrimination law. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through a similar exception in Canadian law and revisits ministerial exception cases to show how the authenticity exception better closes the gap between religious liberty and exempted discrimination.

Sep 2021

Article

The Constitutionalization of Parole: Fulfilling the Promise of Meaningful Review

Alexandra Harrington, Associate Professor of Law and Director, Criminal Justice Advocacy Clinic, University of Buffalo School of Law.

This Article suggests a way to bring the current reality of parole closer to the Court’s promise that parole can render life sentences constitutional. This Article considers how the Supreme Court’s decisions in Graham, Miller, and Montgomery work to constitutionalize parole and change the conventional understanding of the board’s determination. The Article also details the current standards of judicial review of parole board decisions. Because parole is now operating to make constitutional the sentences of people who were children at the time of the offense, the Eighth Amendment task placed on parole boards’ shoulders necessitates substantive standards for the parole board, as well as judicial scrutiny of the board’s determinations.

Sep 2021

Article

Law as a Battlefield: The U.S., China, and the Global Escalation of Lawfare

Jill I. Goldenziel, Professor of International Law and International Relations, Marine Corps University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania

This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different instances of lawfare between China and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the Spratly Islands, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the Article concludes with recommendations for a U.S. lawfare strategy.

Sep 2021

Note

Second-Class Citizens Under the Second Amendment: The Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions

Lauren Devendorf, B.A., Duke University, 2015; J.D., Cornell Law School, 2020; Publishing Editor, Cornell Law Review, Vol. 105.

This Note seeks to critique the conflicting approaches that the Third, Sixth, and Ninth Circuits have taken when analyzing what Second Amendment rights, if any, individuals are entitled to after a mental institution involuntarily commits them. Additionally, this Note offers a novel solution. To do so, it explores “not the what, where, when, or why of the Second Amendment’s limitations—but the who.” Tyler v. Hillsdale Cty. Sheriff’s Dep’t (Tyler I), 775 F.3d 308, 322 (6th Cir. 2014), vacated, 837 F.3d 678 (2016).

Jan 2021

Article

The Evidence Rules That Convict the Innocent

Jeffrey Bellin, Professor, William & Mary Law School

This Article explores the lessons of the Innocence Movement for American evidence law. It argues that the discovery and ongoing chronicle of hundreds of false convictions present a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules and a welcome infusion of energy into evidence policymaking and commentary.

Jan 2021

Article

Inescapable Surveillance

Matthew Tokson, Professor of Law, University of Utah S.J. Quinney College of Law

This Article offers the first systematic analysis of inescapability in Fourth Amendment law. It challenges the prevailing wisdom that inescapability is a desirable or workable basis for Fourth Amendment protection. Inescapability does not provide a conceptually coherent standard for courts to apply. It incentivizes consumers to forego beneficial technologies, creating substantial social harms. It fails to adequately protect the most sensitive forms of personal information. It creates doctrinal confusion and ignores established precedents that contradict the inescapability model. Moreover, inescapability analysis elides individual differences—technologies that are avoidable for most people may be unavoidable for others, including the disabled, the poor, and other disadvantaged populations.

Jan 2021

Note

Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation

Lily A. Coad, B.A., Duke University, 2018; J.D., Cornell Law School, 2021; Publishing Editor, Cornell Law Review, Vol. 106.

In 2019, Senator Josh Hawley (R-Mo.) introduced a bill that exemplifies conservatives’ criticisms of big tech and Section 230. The Ending Support for Internet Censorship Act seeks to eradicate the alleged “anti‑conservative bias” on social media platforms by requiring large tech companies to maintain politically neutral content moderation algorithms and practices. This Note argues that requiring tech companies to maintain politically neutral content moderation algorithms is a form of compelled speech and is therefore presumptively unconstitutional under the First Amendment. Further, it argues that Senator Hawley’s bill cannot survive the applicable standard of strict scrutiny because eliminating alleged political bias by social media companies is not a compelling government interest, and, even if it were, the bill is not narrowly tailored to serving that interest.

Jan 2021

Article

Population-Based Sentencing

Jessica M. Eaglin, Associate Professor of Law, Indiana University Maurer School of Law

This Article addresses the institutionalization of actuarial risk assessments at sentencing by identifying the tension between how courts are responding to actuarial risk assessments at sentencing, and how advocates of the trend want courts to respond to the tools. It also identifies a yet underexplored interest convergence between courts and RAIs’ opponents illuminated by the jurisprudence and worthy of further
exploration going forward.

Jan 2021

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