The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose

Thomas K. Clancy*

What is the purpose of the Fourth Amendment? How should rules – legal principles – be crafted to implement that purpose? This article addresses those questions. Nothing is more fundamental to the development of Fourth Amendment principles than the answers to those questions. Given the wide applicability of the Fourth Amendment to the countless intrusions by the government in daily life, how the Fourth Amendment is to be construed is itself of fundamental concern to all Americans. It is the foundation upon which other freedoms rest.

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High-Frequency Trading: A Regulatory Strategy

Charles R. Korsmo*

The events of May 6, 2010 took high-frequency trading from the edges of public consciousness to being front page news. American stock markets had opened that morning to unsettling rumblings from Europe. The previous day had seen violent protests in Greece against proposed austerity measures designed to avert a default on Greek government debt. The ongoing riots seemed likely to scupper a proposed European Union bailout of Greece, potentially touching off a chain-reaction debt crisis with disastrous consequences for the entire euro zone. Given these inauspicious augurs, it is hardly surprising that investor sentiment was somewhat jumpy and decidedly gloomy for much of the day. Over the course of the morning, prices slid in increasingly volatile trading. By 1:00 p.m., the Standard & Poor’s 500 (“S&P 500”), a well-known index of stock prices for 500 top American companies, had fallen by about 1%—a significant drop, to be sure, but not yet particularly alarming.

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The Copyright/Patent Boundary

Viva R. Moffat*

In passing the Copyright Act in 1976, Congress provided that “pictorial, graphic, and sculptural works” were to be protected, but at the same time made clear that works of industrial design, as opposed to works of applied art, were not to be protected by copyright law. Put simply, “useful articles” are not copyrightable. This is so because useful things belong in the patent realm, if they are to receive protection at all. Seemingly straightforward, this distinction—between applied art and industrial design, between copyright law and patent law—has long perplexed policymakers, courts, and academics.

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Synthetic CDOs, Conflicts of Interest, and Securities Fraud

Jennifer O’Hare*

Following the financial crisis, the synthetic collateralized debt obligation (“CDO”)—a complex derivative that received little mainstream attention prior to the housing meltdown—became big news. Journalists wrote numerous articles explaining how synthetic CDOs spread the contagion of toxic assets throughout the financial system, nearly bringing down the global economy. Government hearings exposed the ugly conflicts of interest inherent in the structuring of synthetic CDOs, as big investment banks created, sold, and invested in synthetic CDOs and often bet against their clients. Some of the world’s largest financial institutions, who faced bankruptcy when their investments lost value, bitterly complained that these synthetic CDOs had been “designed to fail” so that the investment banks could profit at their expense. Greedy investment banks were seen as the problem, not the synthetic CDOs themselves.

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Reclaim This! Getting Credit Seller Rights in Bankruptcy Right

Lawrence Ponoroff*

The oxymoronically titled Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA” or “2005 amendments”) has received considerable attention since its passage, and considerably less than all of it is positive. By even a neutral account, the bill is clumsily drafted, unnecessarily prolix, internally inconsistent, and annealed in a cauldron of special interest pressures. The legislative history is scant and what does exist is less than altogether clear or helpful. Together, these factors have frequently rendered the traditional judicial function in application of the law; namely, ascertaining (or at least beginning by ascertaining) congressional intent, an exercise in futility. To say the least, it is difficult to discern that which, in all likelihood, does not and has never existed in a uniform or coherent fashion.

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Lighting a Fire Under Free Speech: the FDA’s Graphic Attempts to Reduce Smoking Rates

Ashley Peterson*

More than forty-three million adult Americans are cigarette smokers. Cigarette smoking accounts for 400,000 deaths annually—more than AIDS, alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes, and fires combined—making cigarettes the leading preventable cause of death in the United States. Tomorrow, approximately 4,000 children under the age of eighteen will experiment with cigarettes for the first time and another 1,500 will become regular smokers. Of those that smoke regularly, about half will eventually die from tobacco use. Tobacco-related illnesses in the United States alone cost approximately $193 billion each year in lost productivity and health care expenditures. These sobering statistics have encouraged public health officials and lawmakers to take drastic action designed to encourage smokers to quit and to prevent young adults from ever lighting up. The Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or “the Act”) and its implementing regulations promote the government’s anti-smoking agenda—at the expense of tobacco companies’ constitutionally protected free speech.

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