This Note aims to track the Hernandez reasoning, situate it within the historical development of the extraterritoriality doctrine, and evaluate its scope and implications. Part I provides a detailed overview of the development of the extraterritoriality doctrine of the US Constitution. It also describes the modern precedent governing this area of law. Part II critically examines the Hernandez decision in light of its theoretical approach to extending constitutional protections abroad. Part III evaluates the implications and limitations of Hernandez and proposes a more accurate interpretation of the extraterritoriality doctrine as a guide for resolving this and future incidents of violence by CBP agents. Ultimately, this Note argues that the court’s narrow interpretation of constitutional language and inadequate application of extraterritorial principles when deciding whether to deny or extend rights to foreign nationals injured abroad at the hands of government actors is dangerous. Such interpretation encourages inconsistencies and perpetuates a system of lawless law enforcement at the border, where CBP agents have plenary power to act with little oversight and accountability by US magistrates. Instead, this Note proposes an alternative framework for analyzing future extraterritorial incidents of violence at the United States-Mexico border.
Category: 93:5
Effectiveness of Federal Regulation of Mobile Medical Applications
Due to rapid growth and advancement of technology, uncertainty has emerged as to whether some of the medical apps on the market should be considered medical devices, which are subject to stringent regulation by the FDA.The FDA issued final guidelines regarding the regulation of medical apps in September of 2013 and updated the guidance in February 2015, but it has not issued formal regulations.
Part I of this Note examines the development of mobile medical health applications and regulation in countries with comparable mobile-app use, and then explores the evolution of the FDA’s position regarding the regulation of such apps. Part II analyzes and critiques current and conceivable regulatory strategies by the federal government, as well as private regulatory organizations such as the United States Pharmacopeial Convention and the Health on the Net Foundation. Part III argues that current FDA regulations are insufficient and suggests a peer reviewer or other organization may be better suited to assess the usability of apps and offer usage guidelines for consumers. Part III also discusses three proposed models for regulation of mobile medical apps. This Note argues that a regulatory approach that includes a peer review system and a non-profit organization that specializes in mobile medical technology will be more efficient and useful to monitor mobile medical apps than the current FDA guidelines.
Alienage Classifications and the Denial of Health Care to Dreamers
In the Affordable Care Act (“ACA”), passed in 2010, Congress provided that only “lawfully present” individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services (“HHS”) to define who is “lawfully present.” Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals (“DACA”) in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of “lawfully present.” The revised regulation denied DREAMers—undocumented immigrants brought to the United States as children—access to affordable health care, while providing it to similarly situated individuals who had been granted deferred action through other means. This Article examines whether the exclusion of DREAMers from the ACA violates equal protection principles, highlighting critical inconsistencies and gaps in the case law on standards of review for alienage classifications. A circuit split exists about whether non-legal permanent residents are ever entitled to strict scrutiny, and the extent of the Executive’s power over immigration remains unclear, as does the allocation of power within the executive branch. In addition, courts are divided about the standard of review that applies when states discriminate against noncitizens pursuant to a federal statute. All of these issues complicate the analysis and underscore the need to reevaluate an unraveling tiered approach to judicial review.
Uncertain Futures in Evolving Financial Markets
Today’s publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors’ assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular risk facing futures market participants—manipulative trading that destabilizes futures markets—with little emphasis on other risks, including risks to futures traders’ assets. Over the years, that goal has remained largely static.
As this Article argues, that is the problem. The many retail investors that now participate (indirectly) in the futures markets are at risk as a result of the inadequate regulation of futures commission merchants (“FCMs”), the brokerage firms that are essential for futures transactions. “Inadequate” regulation in this context, moreover, means inadequate procedural regulation—regulation aimed at protecting assets that a brokerage customer deposits with a broker for purposes of carrying out her trading activities. The weaknesses of the procedural regulation of FCMs are evident in rules governing both FCMs’ operations and the liquidation of insolvent FCMs. And the deficiencies are more than theoretical, having become all-too-evident in the wake of two recent FCM bankruptcies. Proposing tailored policymaking solutions, this Article further contends that futures regulation can become substantially more effective—and do so in a cost-effective manner that need not excessively disrupt existing regulatory approaches. These proposals would not only help protect retail investors as they navigate new investment options; they would also help fortify the promising role that futures trading has begun to play in twenty-first century financial markets.
Pay It Forward? Law and the Problem of Restricted-Spending Philanthropy
American foundations and other philanthropic giving entities hold about $1 trillion in investment assets, and that figure continues to grow every year. Even as urgent contemporary needs go unmet, philanthropic organizations spend only a tiny fraction of their wealth each year, mostly due to restrictive terms in contracts between donors and firms limiting the rate at which donations can be distributed. Law has played a critical role in underwriting and encouraging this buildup of philanthropic wealth. For instance, contributors can typically take a full tax deduction for the value of their contributions today, no matter when the foundation spends their money, and pay no tax on the investment earnings the organization reaps in the meantime.
What, if anything, justifies public support for “restricted spending” charity? This Article offers the first comprehensive assessment of that question and supplies original empirical evidence on several key aspects of it. I argue that restricted spending sacrifices crucial information, leaves superior opportunities on the table, and on average transfers funds to times when they are less useful. While there is a place for large and long-lived philanthropic organizations in American society, that role does not require public support for restricted spending. As long as foundations can demonstrate their value to new donors, they will continue to thrive. I set out a series of policy recommendations aimed at better reconciling nonprofit law and the principles that justify it.
I support my claims with new evidence drawn from a data set of over 200,000 firm-year observations of private foundations. For example, I find that foundations earn about twice as much money per year as in earlier studies funded by foundation-industry lobbyists and that they are growing three times faster than those earlier studies suggested. This finding implies that the law could require a much higher annual “payout” from foundations. I also find that new laws introduced in about a dozen states since 2006 have significantly slowed foundation spending in the enacting states. Last, I offer simulations of several policy proposals for making foundations more effective at fighting recessions.
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