Iowa Law Review
Mission Statement: The Iowa Law Review provides select second- and third-year University of Iowa law students the opportunity to develop their legal research, writing, and editing skills through their involvement in the production of a law journal that publishes legal articles of national and state interest, maintains a high national ranking, and maintains its historical ties to the Iowa legal community.
- Nbr. 104-2, January 2019
- Nbr. 104-1, November 2018
- Nbr. 103-5, July 2018
- Nbr. 103-4, May 2018
- Nbr. 103-3, March 2018
- Nbr. 103-2, January 2018
- Nbr. 103-1, November 2017
- Nbr. 102-5, July 2017
- Nbr. 102-4, May 2017
- Nbr. 102-3, March 2017
- Nbr. 102-2, January 2017
- Nbr. 102-1, November 2016
- Nbr. 101-5, July 2016
- Nbr. 101-4, May 2016
- Nbr. 101-3, March 2016
- Nbr. 101-2, January 2016
- Nbr. 101-1, November 2015
- Nbr. 100-6, August 2015
- Nbr. 100-5, May 2015
- Nbr. 100-4, May 2015
- Chevron's Liberty Exception
This Article argues that the Supreme Court's practice in immigration cases reflects an unstated but compelling limitation on Chevron deference. Judicial deference to the executive branch is inappropriate when courts review the legality of a government intrusion on physical liberty. This norm is illustrated by the fact that the Court has not meaningfully applied Chevron deference in cases concerning deportation, nor in cases concerning immigration detention. By contrast, the Court applies Chevron deference fairly consistently in other kinds of immigration cases, which suggests that the Court is not displaying an inclination toward immigration exceptionalism when it treats deportation cases differently. Instead, the Court's practice is best explained by broadly applicable and deeply rooted constitutional principles regarding separation of powers and the safeguarding of individuals against the government. The Supreme Court should articulate a rule explaining its consistent practice: a physical liberty exception to Chevron
- Propping Open the Courthouse Door: Why Service Members Should Be Able to Bring Sexual Harassment Suits Under the Feres Doctrine
Most people would be stunned if they were told that their employer could discriminate against them and they would have no form of civil recourse. However, this is the situation that exists every day for the military personnel serving their country. This is because of a little-known strand of case law, referred to as the Feres Doctrine. Shortly after World War II, Congress waived its right to sovereign immunity, with some exceptions, through the Federal Tort Claims Act (“FTCA”). In reading through the FTCA, the Supreme Court created an “incident to service” test, called the Feres Doctrine, to determine whether a service member can sue the federal government. Since Feres, lower courts have struggled to apply the new doctrine to new cases, which has led them to decry it. Despite these reservations, the courts have vastly expanded Feres. The primary reasons courts have used for barring recovery to service members are the fear of double compensation under the Veterans' Benefits Act (“VBA”) and an unwillingness to encroach on the military decision-making process. However, these concerns ignore the fact that some service members do not receive anything under the VBA and civil actions do not unduly burden the military. In response to the everexpanding Feres Doctrine, this Note seeks to strike a balance between respecting the need for military discipline and permitting injured service members to obtain a recovery. As such, this Note advocates that Congress should amend the FTCA to recognize intentional torts, not explicitly excluded under the FTCA, are viable actions. In addition, Congress should intervene and statutorily permit service members to sue under a Title VII regime for harassment. These tweaks will help the military while also helping victims
- Holding the Federal Government Accountable for Sexual Assault
The average American would be shocked to learn that the United States government holds itself absolutely immune from civil liability for most sexual assaults by its employees. Even the average lawyer might be surprised to discover that the federal employee who commits a sexual assault may also be shielded from individual tort liability by a special federal statute. The Federal Tort Claims Act bars assault and battery claims against the sovereign United States, even if committed by an agent acting within the scope of most types of federal employment-that includes military recruiters, postal workers, and daycare employees. At the same time, the Westfall Act grants federal employees immunity from state tort claims for acts within the scope of employment. The scope of employment for both federal statutes is defined by state respondeat superior law, which over the decades has evolved to hold employers legally responsible under more circumstances for the intentional wrongdoing of employees. As a consequence of these statutes and evolving liability doctrines, both the federal government as an entity and the federal employee as an individual may well be immune from tort liability for assault and battery. Absent legislative reform, the victim of a sexual assault at the hands of a federal employee may be left without any remedy against either the government or the individual in any venue, state or federal. In this article, the preclusion of a remedy for sexual assault by a federal agent and the avoidance of federal responsibility is highlighted, together with a proposed legislative resolution
- Law and the Blockchain
All contracts are necessarily incomplete. The inefficiencies of bargaining over every contingency, coupled with humans' innate bounded rationality, mean that contracts cannot anticipate and address every potential eventuality. One role of law is to fill gaps in incomplete contracts with default rules. Emerging technologies have created new, yet equally incomplete, types of contracts that exist outside of this traditional gap-filling legal role. The blockchain is a distributed ledger that allows the cryptographic recording of transactions and permits “smart” contracts that self-execute automatically if their conditions are met. Because humans code the contracts of the blockchain, gaps in these contracts will arise. Yet in the world of “smart contracting” on the blockchain, there is no place for the law to step in to supply default rules-no “legal intervention point.” The lack of a legal intervention point means that law on the blockchain works in a fundamentally different way from law in the corporeal world. Business organizational law provides a prime example of how the law uses default rules to fill gaps in an incomplete contract and how the law works differently in the blockchain context
- Disarray Among the Circuits: When Are Consumer Surveys Persuasive?
Trademarks have been an integral part of our economic system for generations. As our needs and abilities have advanced, so too have trademark regulations advanced to meet these new challenges. This Note examines the requirements for federal trademark protection under the Lanham Act. Protection normally only extends to marks that are determined to be inherently distinct; however, in certain circumstances, marks that are not inherently distinct may be eligible for protection, if it can be sufficiently proven that a descriptive mark acquired distinctiveness. The best tool for showing that descriptive marks have become distinct are consumer surveys, which allow parties to look directly into the minds of consumers. However, there is no established standard for what level of positive response is needed on a consumer survey for the survey to be persuasive. Without an identifiable standard, the federal circuits have been thrown into disarray, each developing its own standard to address this void. This Note proposes that a “soft threshold” should be set by the Supreme Court for these surveys, creating a guidepost to help determine whether the mark has made a sufficient showing of distinctiveness
- Conspicuous Prosecution in the Shadows: Rethinking the Relationship Between the FCPA's Accounting and Anti-Bribery Provisions
The Foreign Corrupt Practices Act (“FCPA”) criminalizes foreign bribery by (1) American defendants; (2) defendants who trade stocks in the United States or register with the SEC; and (3) foreign defendants who act in furtherance of foreign bribery while inside the United States It imposes accounting requirements on some potential defendants. Congress meant the FCPA to help developing countries eliminate bribery, and, in so doing, advance U.S. economic and political interests. However, the FCPA has some fundamental flaws-flaws which U.S. enforcement agencies have particularly abused of late. The FCPA is vague. The reticence of defendants to go to trial has kept the courts from clarifying it and allowed prosecutors to interpret it however they like. The FCPA is also imperialist. These problems can be rectified by repealing the anti-bribery provisions and replacing them with a modified accounting requirement inspired by but independent from the accounting provisions
- Policing Police Access to Criminal Justice Data
Today, it is widely recognized that we live in an informationbased society. This is certainly true of police on street patrol, who more than ever before rely on, and enjoy ready access to, information when doing their work. Information in aggregated form, for instance, is used to create algorithms for “hot spot” policing that targets specific areas. Information concerning individuals, however, must somehow be tied to them if it is to be useful. An arrest warrant in a database, for example, lies inert until an officer associates it with an individual; so too does information regarding suspected gang affiliation and the mass of other information contained in databases. With databases expanding exponentially by the day, and police engaging in what has come to be known as database policing, in search of “hits,” personal identity has assumed unprecedented importance. This Article addresses these developments. Unlike prior scholarship, which has focused mainly on the collection and use of information regarding individuals, the Article examines the intermediate step of database policing: the means by which police access database information. For police, the benefits of such access are as broad as the expanse of databases on which they have come to rely, which is very broad indeed. Databases today include not only arrest warrants, most often for minor offenses, which police can use for evidentiary “fishing expeditions” when conducting searches incident to arrest. They also include records of prior stops, arrests, and convictions, which often reflect racially biased policing practices that are reified when relied upon by police. Databases even contain personally sensitive information that, while not incriminating, can be embarrassing for individuals who are detained. By conceiving of personal identity itself as evidentiary fruit worthy of constitutional regulation the Article fills a major gap in policing scholarship, addressing a matter that will only grow in importance as police rely on databases that are rapidly proliferating in number and kind
- Avoiding Liability: Changing the Regulatory Structure of Cryptocurrencies to Better Ensure Legal Use
Monitoring the transactions consumers in the United States make when buying and selling virtual currency requires an inventive regulatory system because many types of virtual currency, like Bitcoin, are operated anonymously and independently. In the United States today, the Internal Revenue Service (“IRS”) has little structure in how it monitors cryptocurrencies, merely classifying them as property and having the taxpayer report all losses and gains subject to the rules of personal property. This classification is difficult to apply because the IRS has little control over how the system is regulated. To solve this issue, the United States should either outlaw the use of cryptocurrency altogether or reclassify virtual currency as foreign currency. Making virtual currency use illegal might not be the most practical solution because of its prominence in the market today, but it would provide the federal government a clear way to deal with cryptocurrency. If the United States reclassifies virtual currency as a foreign currency, there would be an established regulatory framework in place that the IRS would be able to follow when attempting to monitor the use of virtual currency. With either solution, the United States will be better equipped to regulate the financial marketplace of virtual currencies
- Hybrid Removal
In the wake of the Supreme Court's recent activity in the domain of personal jurisdiction, defendants have greater leverage to challenge the forum choices made by plaintiffs when initiating litigation. This Article uncovers an unexpected way that defendants are deploying that leverage: by filing hybrid removals in federal court. Hybrid removals are filed in cases that lack facial diversity of citizenship and involve no federal question. Ordinarily, these characteristics would trigger a quick remand. To avoid that result, defendants have sought to make personal jurisdiction part of the removal analysis. This crossing of jurisdictional lines has the potential to facilitate expediency, but it may also undermine the relationship between federal and state courts. For that reason, the Article concludes that hybrid removal should be embraced with due care, and offers some guidelines for its implementation
- Public Utilities and Transportation Electrification
This Article examines the rapidly evolving role of the nation's electric utilities in developing the network of public electric vehicle (“EV”) charging stations across the country required to facilitate the growth of EVs. As EV adoption in the United States continues to rise, the roles that governmental entities, electric utilities, and market actors will play in deploying the EV charging stations necessary to support transportation electrification remains a central question. This question raises a multitude of issues relating to consumer demand for EVs, competitive markets, utility rate design, government mandates and incentives, policies to reduce carbon emission and other air pollutants, and equity concerns. This Article focuses specifically on state public utility commissions, which will review and approve electric utility proposals to invest hundreds of millions of dollars in EV charging infrastructure that would be paid for, in most cases, by utility customers through cost-of-service ratemaking. This Article considers how state approaches on this issue may differ, at least in the short term, depending on varying state environmental policies, politics, geography, and utility regulatory structure. One constant among the states, however, is the range of rulemaking, investigatory, and adjudicative processes available to state utility commissions to consider these proposed utility investments. This Article concludes that public utility commissions in each state should focus on using their investigative and adjudicative authority to create a robust administrative record for EV charging-related decisions-both general rulemaking decisions and individual utility proposal decisions. These investigative and adjudicative proceedings can support decisions today regarding short-term utility pilot programs, as well as form the basis for broader, far-reaching policies to govern development in the long term. Notably, there are good reasons for state utility commissions to be central players in this process. State commissions, acting in their adjudicative capacity, can be more nimble than state legislatures, allowing for experimentation over different utility rate proceedings, serving an information gathering function for subsequent legislative action and commission rulemaking, and facilitating early investment in EV charging, where appropriate
- Exclusivity Without Patents: The New Frontier of FDA Regulation for Genetic Materials
Over the last twenty years, the legal and scientific academic communities have been embroiled in a debate about the patent eligibility of genetic materials. The stakes for both sides could not be higher. On one hand are the potential multi-billion dollar profits on the fruits of research (from...
- Efficient Copyright Infringement
Copyright infringement is said to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that, in order to achieve copyright’s goal of maximizing cultural production, this dominant story of infringement’s costs requires...
- Data Security and the FTC's UnCommon Law
There were more data breaches in 2014 than any prior year, including the well-publicized attacks on Sony, Target, JPMorgan, and Home Depot—and uncountably more on individuals and smaller companies. This pace continued into 2015, with attacks against Anthem BCBS, Hacking Team, eBay, Trump Hotels,...
- New Majoritarian Constitutionalism
Ever since Alexander Bickel coined the phrase "countermajoritarian difficulty," commentators have frequently described the Supreme Court as either a "majoritarian" or "counter-majoritarian" institution. In this heuristic dichotomy, the Justices either base...
- Opt-Out Education: School Choice as Racial Subordination
Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher...
- Big Data and Pharmacovigilance: Using Health Information Exchanges to Revolutionize Drug Safety
Data on individual patients collected through state and federal health information exchanges has the potential to usher in a new era of drug regulation. These exchanges, produced by recent health care reform legislation, will amass an unprecedented amount of clinical information on drug usage,...
- Prostitution 3.0?
This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be...
- Policing Police Access to Criminal Justice Data
Today, it is widely recognized that we live in an informationbased society. This is certainly true of police on street patrol, who more than ever before rely on, and enjoy ready access to, information when doing their work. Information in aggregated form, for instance, is used to create algorithms...
- Policing the Boundaries of Whiteness: The Tragedy of Being 'Out of Place' from Emmett Till to Trayvon Martin
This Article takes what many view as an extraordinary case about racial hatred from 1955, the Emmett Till murder and trial, and analyzes it against the Trayvon Martin killing and trial outcome in 2012 and 2013. Specifically, this Article exposes one important, but not yet explored similarity...
- Pulling over the United States Sentencing Guidelines: Defining 'Arrest' Under Section 4A1.2(a)(2)
The United States Sentencing Commission ("Commission") created the United States Sentencing Guidelines ("Guidelines") to bring uniformity and fairness to criminal sentencing in the United States. Since their inception and application by judges in 1987, the Guidelines have lacked ...