18 U.S.C. §641 prohibits the theft or misuse of federal government “things of value.” The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or conversion, and government-produced or government-held information to be government property. The circuits disagree about whether § 641...
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This...
Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the pressure is growing, as technology makes surveillance and other information gathering more cost effective and thus more likely...
The Social Security Administration’s Disability Insurance program encompasses a mammoth adjudicatory and appellate process, rivaling in size the entire federal judiciary. The SSDI is principally governed by validly promulgated regulations, but the SSA also uses an internal manual—“HALLEX”—to provide more detailed rules and guidance to its adjudicators and...
Reliance plays a central role in contract law and scholarship. One party relies on the other’s promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing about what we should do about it. The focus of this Essay is on the many ways that parties choose to protect reliance. The relationship...
Vouching, which developed out of the Supreme Court’s desire to protect the jury’s right to evaluate credibility, traditionally forbids prosecutorial statements designed to enhance or attest to the credibility of a government witness. This Note examines a flavor of vouching unique to cases involving cooperating witnesses. Prior to testifying, cooperating witnesses...
All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition exists because scholars generally give little consideration to the underlying actors and their evolving roles in the drafting...
One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal Trade Commission (FTC) has been enforcing companies’ privacy policies through its authority to police unfair and deceptive trade practices. Despite over fifteen years of...
The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third...