Volume 2019, No. 3

PDF link Table of Contents


PDF link Thomas E. Fairchild Lecture Civic Education and the Federal Courts

by Robert A. Katzmann

Judge Raggi, thank you for your generous introduction. I feel so fortunate to have you as my colleague and friend. Our court, the Second Circuit, is deeply privileged that you are an esteemed member of it. I didn’t know Judge Fairchild, but how proud he must have been of you, for all that you have done in the service of the public good, widely recognized for your extraordinary contributions, wearing many hats, for instance, as a U.S. Attorney in the Eastern District of New York, as a renowned district judge, as an influential judge on the Court of Appeals whose opinions have shaped our jurisprudence, as a leader in a variety of judicial branch activities, including your service as Chair of the Advisory Committee on the Criminal Rules by appointment of Chief Justice Roberts. Thank you. All of us who seek to further the fair and effective administration of justice are in your debt for your leadership.


PDF link Baseball’s Antitrust Exemption for Franchise Decisions: Its Justifications and Antitrust Law Implications for Other Professional Leagues

by Allan H. (“Bud”) Selig, Thomas J. Ostertag, & Matthew J. Mitten

This Article considers Major League Baseball (MLB)’s antitrust exemption, specifically its origin and continuing justification as well as its judicial application to MLB franchise decisions, as it approaches the 100th anniversary of its creation by the United States Supreme Court. It concludes that the majority judicial view broadly construing this exemption is appropriate and its application to MLB franchise decisions has not harmed competition for purposes of antitrust law. The Article explains why MLB’s antitrust exemption should be instructive to courts resolving antitrust litigation challenging other major professional sports leagues’ core internal governance issues, asserting that its justifications support judicial application of the single entity defense or a rebuttable presumption of per se reasonableness in antitrust lawsuits challenging their franchise decisions.

PDF link Citizens United as Bad Corporate Law

by Jonathan Macey & Leo E. Strine, Jr.

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is as much about corporate law as it is about the First Amendment. Unfortunately, the
reasoning in the opinion is predicated on a fundamental misconception about both the legal status and the fundamental nature of the corporation. Specifically, Citizens United, which prohibited the government from
restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory
that corporations are “associations of citizens” rather than what they actually are: legally autonomous entities that are conceptually distinct from those who own their stock.

PDF link The Case for American Muslim Arbitration

by Rabea Benhalim

This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law.


PDF link Printing for the Perfect Fit: Balancing FDA Regulation of 3D Printed Medical Devices

by Rachel Dykema

The world of 3D printing is making its debut on the cutting edge of healthcare. The industry, once traditionally focused on manufacturing, modeling, and small businesses consumerism, now includes vital healthcare objectives. Patient care is not only enhanced by 3D printing of models, but also through the custom design, manufacture, and implementation of patient-specific medical devices. Now, patients can receive implantable devices custom created for their specific anatomy and doctors can tailor prosthetics to a growing child heavy financial. In other words, 3D printing has opened the door to a reduced cost, highly innovative implementation of medical devices. That innovation is crucial to deft and nimble care and addressing patient needs in an increasingly customized world.

PDF link Step One to Recusal Reform: Find an Alternative to the Rule of Necessity

by Skylar Reese Croy

The rule of necessity allows a judge to hear a case despite the judge’s conflict of interest if the judge’s disqualification would deny a forum for the case. For example, if every justice on a state supreme court has a conflict of interest, the court can still hear the case. At the turn of the twentieth century, the rule of necessity rarely appeared in case law. However, in recent decades its use appears to have spiked. Today, forty-two states endorse the rule of necessity either in a rule of their judicial code of conduct or a comment to a rule or in an internal operating procedure. Few scholars, and more importantly few states, have considered alternatives to the rule of necessity.

News of the School 2018

PDF link Supplement to Volume 2018: News of the School