Category: Issue 5
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
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