Volume 2018, No. 5

PDF link Table of Contents


PDF link The Metasplit: The Law Applied After Transfer in Federal Question Cases

by Jeffrey L. Rensberger

Cases may be transferred from one federal district court to another under 28 U.S.C. § 1404 for convenience or under 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. In federal questions cases, such a transfer may result in the application of a different rule of law if there is a split of authority among the circuits. Should the court receiving the transferred case apply its own understanding of federal law or instead apply the law that would have been applied by the transferring court? The federal courts are split on this question of how to handle splits of authority, hence the term “metasplit.” In diversity cases the law is well settled that the law does not change upon transfer under either of these provisions. The court receiving the transfer applies the same state law that would have been applied by the transferring court. In federal question cases, on the other hand, perhaps a majority of courts apply the law of the transferee court. This outcome is correct as to transfers under § 1404, although an exception for nonuniform federal law—when federal law borrows state law or is otherwise forum dependent—should be recognized. For transfers under § 1407, however, the law of the transferor court should apply because under § 1407 the case is to be remanded to the transferor court upon completion of pretrial proceedings.

PDF link Property-as-Society

by Timothy M. Mulvaney

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.

PDF link The Private-Search Doctrine Does Not Exist

by Ben A. McJunkin

This Article advances the novel argument that there is no such thing as the Fourth Amendment’s private-search doctrine. For nearly four decades, courts have invoked the doctrine to permit police to replicate, without a warrant, a prior search performed by a private third party. This Article contends that the doctrine rests on a fundamental misreading of the Supreme Court’s seminal precedents and an untenable theory of Fourth Amendment privacy.


PDF link Reading Sexual Orientation Protections into Title VII: A Moral Revitalization Theory of Statutory Interpretation

by Charles J. Ureña

Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, or national origin, but does not explicitly mention sexual orientation. Despite a growing acceptance of LGBT individuals in American society, the vast majority of courts have read Title VII to permit employers to fire, fail to promote, demote, refuse to hire, or otherwise discriminate against LGBT employees because of their sexual orientation. This Comment develops and advocates the Moral Revitalization Theory, a theory of statutory interpretation that allows judges to take societal progress and changing moral attitudes into account when interpreting Title VII. Under the Moral Revitalization Theory, judges may use broadly held morals to revitalize statutes if certain preconditions are met. This Comment finds that Title VII is ripe for precisely this kind of revitalization.