The mental state of scienter - intent to defraud - is a required element of a securities fraud claim.  The scienter inquiry is fairly straightforward when the defendant is an individual.  It is more complex when a corporate entity is involved because a corporation can only act through its agents; it has no mind of its own.  This article compares the three approaches courts have used to impute scienter to corporate defendants in the securities fraud context and concludes by recommending the approach which strikes an appropriate balance between several dueling public policy concerns.

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole ("LWOP") for a juvenile under eighteen who commits a non-homicide offense. For Terrance Graham, who committed home-invasion robbery at seventeen, the decision does not mean necessarily that he someday will leave the brick walls of Florida's Taylor Annex Correctional Institution. Unlike previous Eighth Amendment decisions, such as Roper v. Simmons, where the Court barred the death penalty for juveniles, this new categorical rule does not translate into automatic relief for members of the exempted class: "A State need not guarantee the offender eventual release," Justice Kennedy wrote for the majority, "but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Graham offers the possibility of redemption but not its guarantee.

Immigration has once again become the subject of widespread interest and public debate. This renewed interest, however, was not the result of Harry Reid's vow that the Senate will tackle comprehensive immigration reform sometime this year. Nor was it prompted by new policy initiatives with respect to immigration enforcement being implemented by the Department of Homeland Security. Rather, it has been the result of legislative action taken in one state-Arizona. Arizona's move to regulate immigration has predictably raised questions about the proper role of a state with respect to an area dominated by federal legislation. Yet the discussion thus far may have overlooked the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control.

The Statue of Liberty, which has been called the "Mother of Exiles," stands as a reminder of one of the foundational ideals of U.S. immigration policy-providing refuge to the vulnerable. Women worldwide have new reason to believe in this promise, because victims of domestic violence may now have a better chance of being granted asylum in a U.S. immigration court.

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." The faculty senate and outside commentators have declared that the Akron policy is "of doubtful legality" because it "appears to violate" GINA. However, appearances can be deceptive. GINA's ban on the acquisition of "genetic information" also can be read so that it does not reach nonmedical DNA tests. Because employers have nondiscriminatory reasons to use forensic DNA identification technology, this narrower interpretation is more faithful to the express purpose of the law.        

In the aftermath of the global financial crisis of 2008-2009, investors, analysts, legislators, and pundits have spotlighted "good" or "improved" corporate governance as a remedy for all that presently ails us. It is one remedy in a long wish list that includes tougher requirements for risk capital, liquidity, and leverage; compensation and bonus reform; reimposition of the Glass-Steagall-like separation of bank "utility" and "casino" functions; the downsizing or breakup of institutions deemed "too big to fail;" enhanced consumer protection; securities law liability for secondary violators (like credit rating agencies); direct taxation of proprietary trading; "macro-prudential" regulation; and new transparency requirements for derivatives trading and clearance.

If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been margin-ally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 ("ATA"), the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and the Flatow Amendment to the Foreign Sovereign Immunities Act ("FSIA"). These attempts, however, are not enough.

In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues—the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial. The letter from Laurence Mueller, a professor at the University of California at Irvine, identified two obvious mistakes in the state's expert testimony.

This essay clarifies the nature and extent of the errors in this evidence in Brown. One might think that the expert's letter, the opinions of the lower courts, and the briefs—including one from "20 Scholars of Forensic Evidence"—would have done this, but there is more to be said.

In Varnum v. Brien, decided April 3rd of this year, the Iowa Supreme Court unanimously struck down the state's statutory ban on same-sex marriage. In a remarkably clear and thoughtful opinion, Justice Mark Cady explored in depth the immutability of sexual identity and the appropriate standard of judicial review for legislative classifications based on sexual orientation-adopting (for now) an intermediate level of scrutiny. The decision marked the first significant legal victory for same-sex marriage outside of New England (with the exception of a short-term success in Hawaii), and served notice that the gay rights movement—once thought compelling only among northeastern "liberal elites"—may be carving out a foothold in America's heartland. As events in Vermont and Connecticut have demonstrated, however, constructing the civil apparatus of same-sex marriage requires a deft legislative hand: there are, for example, complex intersections of state and federal law (tax, healthcare, etc.) to consider; and, perhaps more significantly, there are inevitable boundary disputes along the constitutional border between equal protection and religious liberty. Both of these states have restructured their tax code to account for same-sex couples without reference to federal law, and both have adopted statutory language that narrowly exempts religious groups from otherwise applicable requirements of anti-discrimination law. While Iowa can probably look to the northeast for help in resolving the former complications, recent polls indicate that Midwesterners tend to take their religion more seriously than do modern New Englanders, and so the state will likely have to cut its own trail through the thickets of religious freedom.

A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010).

Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in their cars is further diminished as a matter of law, while the "homeless" sleeping out of doors and exposed to the elements enjoy no expectation of privacy apart from what they manage to secure in duffle bags. The Court's express rejection of the claim that the "‘need for decent shelter' and the ‘right to retain peaceful possession of one's home' are fundamental interests which are particularly important to the poor"-like its assertion that education is not a "fundamental right"-follows from the proposition that laws "having different effects on the wealthy and the poor" are not unconstitutional, and from the consequence of that proposition: that the freedoms most valued by Americans are for purchase. The wealthier the man, the more unequal the share he can afford.

In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the costs of such behavior. We hoped that our article would spark new interest in the interplay between tort liability and levels of care and activity. We are fortunate that three prominent tort scholars have already provided important insights on both our positive argument and our policy recommendations.

These responses vary in their assessments of our contribution to legal scholarship. While some find that our article addresses an "interesting omission in tort law scholarship" and highlights a "missing paradigm" that is "central to negligence doctrine," others consider it a "novel brick on a road that runs in the wrong direction." Nevertheless, and although the responses focus on different parts of the article, they share several important objections to our analysis.

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009).

Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the cases embrace as "a window into the commonalities, if any, between statutory and constitutional interpretation." But Manning's overly programmatic approach does not so much open this portal as close it shut. His insistence that legislative acts and the Constitution are alike is impossible to square with the theory of our written constitution that has prevailed ever since John Marshall and Alexander Hamilton first propounded it: that the acts of a superior must trump those of every inferior authority.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009).

In Negligence and Insufficient Activity: The Missing Paradigm in Torts, David Gilo and Ehud Guttel argue that negligence law encourages inefficiently high and low levels of activity because negligence law ordinarily does not take activity levels into account. They suggest that the law should impose liability for failing to take safety precautions-even where precautions would not be cost-justified-whenever the threat of this liability negates the incentive for an actor to choose an insufficient level of activity. Until now, the literature on the interaction between liability standards and activity levels has failed to recognize the possibility of inefficiently insufficient activity. I commend Gilo and Guttel for both their insight and their explication of it.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009).

Professors David Gilo and Ehud Guttel have written an important article on the tendency of the negligence rule to produce inefficiently low activity levels. In Negligence and Insufficient Activity: The Missing Paradigm in Torts, the authors claim insufficient activity to be the "missing paradigm" in tort theory. Although I agree with Gilo and Guttel that this missing paradigm is central to negligence doctrine, I disagree with them about how insufficient activity levels arise.

A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009).

Within the law and economics field, there often surfaces a near hypnotic attraction to the Hand formula as the one and only tool that drives tort law toward economic efficiency. Hand's intuition was, of course, that the test for efficiency requires a balancing of three variables. The burden of taking particular precautions is compared to the expected loss from some activity, which in turn consists of the likelihood of some particular harm multiplied by its anticipated severity. Liability attaches only where the burden of precautions is lower than the anticipated accident costs. By forcing cost-effective precautions and no others on potential tortfeasors, so the story goes, tort law weeds out desirable from undesirable conduct.

A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009).

One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for test, the proximate cause test or the rule of intervening cause test), and a doctrine of remoteness of damage. Thus, in the typical accident example, if A, B, and C inflicted risk upon D, often times the tort system will filter out A and B and leave only C to carry the final burden. Ariel Porat's outline of the Expanded Duty of Restitution in his article, Private Production of Public Goods: Liability for Unrequested Benefits, provides an interesting and provocative solution to the dilution of liability puzzle.