Why Bivens Won't Die: The Legacy of Peoples V. CCA Detention Centers

Full-text available at SSRN. See link in this record.Interpreting recent Supreme Court precedent, the Tenth Circuit, in Peoples v. CCA Detention Centers, held that a federal prisoner confined in a privately run prison may not bring a Bivens suit against the employees of the private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the Supreme Court's evolving Bivens jurisprudence and turns next to an overview of the Tenth Circuit's opinion. Third, the author argues that, despite the Tenth Circuit's new approach, putative constitutional claims brought under state-law theories of recovery will often be re-federalized, producing uniform federal liability rules and federal jurisdiction. The author concludes that should the Supreme Court truly wish to end the practice of implying causes of action from the Constitution, it must reconsider a whole host of federal common law and jurisdictional doctrines - which the Court may find unpalatable

What's Good for the Goose is Not Good for the Gander: Sarbanes-Oxley-Style Nonprofit Reforms

Full-text available at SSRN. See link in this record.In this article, I contend that these Sarbanes-Oxley-inspired, state, nonprofit reforms, particularly the costly disclosure requirements, will be of little value in the effort to improve ethical nonprofit board governance. The article proceeds as follows. Part II provides a primer on the oversight of nonprofit organizations. Part III reviews the recent Sarbanes-Oxley-like nonprofit reforms introduced in seven states. Part IV contends that the disclosure-focused reforms, which form the bulwark of these acts, will not foster ethical nonprofit board governance. Part V argues that this failure stems from the inappropriate application of a stockholder-based, normative perspective in the nonprofit sector. The article concludes by noting that appropriating a normative construct more tailored to the nonprofit community, namely stakeholder theory, is essential to drafting effective nonprofit sector reforms in the future

What\u27s Good for the Goose Is Not Good for the Gander: Sarbanes-Oxley-Style Nonprofit Reforms

In this Article, I contend that the Sarbanes-Oxley-inspired nonprofit reforms currently being put forward in seven states, particularly the costly disclosure requirements, will be of little value in the effort to improve ethical nonprofit board governance. After providing a primer on the oversight of nonprofit organizations and highlighting the unique difficulties facing the nonprofit sector the Article reviews the recent Sarbanes-Oxley-like nonprofit reforms introduced in seven states. It then contends that the disclosure- focused reforms that form the bulwark of these initiatives will not foster improved ethical nonprofit board governance. It also argues that this failure stems from the inappropriate application of a stockholder-based normative perspective in the nonprofit sector The Article concludes by noting that appropriating a normative construct more tailored to the nonprofit community, namely stakeholder theory, is essential to drafting effective nonprofit sector reforms in the future

Jurisdiction by Cross-Reference

State and federal law often cross-reference each other to provide a rule of decision. The difficulties attendant to these cross-referenced schemes are brought to the fore most clearly when a federal court must determine whether such bodies of law create federal question jurisdiction. Indeed, the federal courts have issued scores of seemingly inconsistent opinions on these cross-referential cases. In this Article, I offer an ordering principle for these apparently varied, cross-referential jurisdictional cases. I argue that the federal courts only take federal question jurisdiction over crossreferenced claims when they, from a departmental perspective, maintain declaratory authority over the cross-referenced law. I defend this thesis by extensively exploring cross-referenced regimes in numerous modes. I also contend that this cross-referential ordering principle offers significant insights into the nature of federal question claims more generally. Namely, I assert that, contrary to the predominant view, the federal courts do not stand ready to hear cases in which the judiciary as a whole is deployed merely as a fact-finding forum under federal question jurisdiction. Further, I contend that this view of federal question jurisdiction comports with the original understanding of that font of jurisdiction, as well as principles of judicial independence, and that the Court’s tendency to vest federal question jurisdiction upon mere formal distinctions in these contexts often leads to separation-of-powers difficulties. As such, I advocate that jurisdiction over all cross-referenced regimes proceed on functionalist lines

Federal Courts Not Federal Tribunals

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase from Justice Scalia, I coin this new jurisdictional view the "tribunals position." I argue that even assuming a judicial policy weighing against inferring causes of action is wise; the move to treat this policy issue as a jurisdictional question is not. First, I trace the shadowy history of the tribunals position from dissents in the 1940s to a majority opinion in the October 2007 term. Next, I contend that - 1331 jurisdiction, contrary to the key assumption of the tribunals position, is best understood as a function of federal rights, not causes of action. I further contend that originalist-based interpretations of Article III that challenge the propriety of inferring causes of action are (even on intra-originalist grounds) unpersuasive, because they fail to account for the distinction between constitutional interpretation and constitutional construction. I conclude that the still nascent attempts to construe a policy preference against inferring causes of action as a jurisdictional matter illustrate the broader point that matters of prudence are ill-conceived as jurisdictional questions

What\u27s Good for the Goose Is Not Good for the Gander: Sarbanes-Oxley-Style Nonprofit Reforms

In this Article, I contend that the Sarbanes-Oxley-inspired nonprofit reforms currently being put forward in seven states, particularly the costly disclosure requirements, will be of little value in the effort to improve ethical nonprofit board governance. After providing a primer on the oversight of nonprofit organizations and highlighting the unique difficulties facing the nonprofit sector the Article reviews the recent Sarbanes-Oxley-like nonprofit reforms introduced in seven states. It then contends that the disclosure- focused reforms that form the bulwark of these initiatives will not foster improved ethical nonprofit board governance. It also argues that this failure stems from the inappropriate application of a stockholder-based normative perspective in the nonprofit sector The Article concludes by noting that appropriating a normative construct more tailored to the nonprofit community, namely stakeholder theory, is essential to drafting effective nonprofit sector reforms in the future

No Longer Safe at Home: Preventing the Misuse of Federal Common Law of Foreign Relations as a Defense Tactic in Private Transnational Litigation

In an increasingly common litigation strategy, plaintiffs in Patrickson v. Dole Food Company, laborers in the banana industries of Costa Rica, Ecuador, Guatemala and Panama, brought a classaction suit in Hawaii state court against Dole Food and other defendants. Plaintiffs brought only state law causes of action, alleging that they had been harmed by Dole Food\u27s use of DBCP, a toxic pesticide banned from use in the United States. Dole Food removed the case to federal district court seeking the procedural advantages of a federal forum, as corporate defendants facing alien tort plaintiffs seeking redress for overseas conduct invariably do. The advantages Dole Food sought from a federal forum included: stricter standing requirements, stricter burdens of proof, and a more liberal standard for forum non conveniens dismissal. Of these, federal forum non conveniens doctrine was, arguably, Dole Food\u27s strongest weapon. A forum non conveniens dismissal that forces plaintiffs to seek recovery in Central American courts, as was the case in Patrickson, generally equates to a victory for a corporate defendant. As is often the case, the district court granted Dole Food\u27s motion to dismiss based on forum non conveniens