Volume 63, Number 7 – April 2014

Article

Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment
Joseph Blocher
PDF

A surprising amount of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is widespread, the case is also important—artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

Lecture

Lex Majoris Partis: How the Senate Can End the Filibuster on Any Day by Simple Majority Rule
Akhil Reed Amar
PDF

Notes

Combating Privatization: Modifying the Veterans Administration Fiduciary Program To Protect Incompetent Veterans
Whitney Bosworth Blazek
PDF

Created to supervise the distribution of Veterans Administration benefits, the Veterans Benefit Administration Fiduciary Program was designed to help thousands of incompetent veterans handle their finances. Rather than directly managing each veteran’s funds, the Fiduciary Program employs a privatization model whereby a private individual or institution is appointed to manage a veteran’s assets. The Fiduciary Program then monitors these fiduciaries to ensure the veteran’s funds are properly expended.

This Note argues that in practice this privatization model is seriously flawed and that it exposes some of the most vulnerable portions of the veteran population’s funds to misuse.

Licensed To Kill: A Defense of Vicarious Liability Under the Endangered Species Act
Devon Lea Damiano
PDF

The Endangered Species Act (ESA) makes it illegal to “take” an endangered and threatened species by killing, harming, or harassing the animal. Although the classic example of a take is an individual poacher shooting an endangered species, these protected species are also harmed by larger–scale policies and programs. In several court cases, local and state governments have been held vicariously liable for the take of endangered species when their policies or actions caused third parties to commit a take.

The vicarious liability theory, as applied to the ESA, is controversial and has been criticized by numerous scholars. This Note argues that a limited version of the vicarious liability theory is consistent with the text of the ESA and plays an essential role in fulfilling the promise of the ESA’s take prohibition.

The Fall and Rise of the Exit Consent
Keegan S. Drake
PDF

Bond issuers wanting to restructure their distressed debt often propose an exchange offer, in which the issuer persuades its bondholders to swap their present holdings for new bonds capable of being honored. To guard against nonparticipating bondholders, issuers may pair their exchange offers with an exit consent. A use of a bond’s modification clause, an exit consent is a technique by which bondholders participating in the exchange also vote to impair the distressed bonds.

Use of the exit consent raises a contract question about the duty of good faith and fair dealing. For a quarter of a century, exit consents survived judicial scrutiny when they followed the Delaware case Katz v. Oak Industries Inc. Then, in a case emblematic of the recent Eurozone economic crisis, Assénagon Asset Management v. Irish Bank Resolution Corp., an English court found that the exit consent breached this doctrinal duty, seemingly upending Katz’s position as the seminal case on exit consents. This Note argues that such concern is misplaced, concluding that Assénagon augments but does not replace Katz. It proposes reconciling the two cases in a manner that upholds the common values of each case in an effort to provide stable legal principles amid markets in flux.

Volume 63, Number 7 – April 2014

Article

Nonsense and the Freedom of Speech: What Meaning Means for the First Amendment
Joseph Blocher
PDF

A surprising amount of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is widespread, the case is also important—artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

Lecture

Lex Majoris Partis: How the Senate Can End the Filibuster on Any Day by Simple Majority Rule
Akhil Reed Amar
PDF

Notes

Combating Privatization: Modifying the Veterans Administration Fiduciary Program To Protect Incompetent Veterans
Whitney Bosworth Blazek
PDF

Created to supervise the distribution of Veterans Administration benefits, the Veterans Benefit Administration Fiduciary Program was designed to help thousands of incompetent veterans handle their finances. Rather than directly managing each veteran’s funds, the Fiduciary Program employs a privatization model whereby a private individual or institution is appointed to manage a veteran’s assets. The Fiduciary Program then monitors these fiduciaries to ensure the veteran’s funds are properly expended.

This Note argues that in practice this privatization model is seriously flawed and that it exposes some of the most vulnerable portions of the veteran population’s funds to misuse.

Licensed To Kill: A Defense of Vicarious Liability Under the Endangered Species Act
Devon Lea Damiano
PDF

The Endangered Species Act (ESA) makes it illegal to “take” an endangered and threatened species by killing, harming, or harassing the animal. Although the classic example of a take is an individual poacher shooting an endangered species, these protected species are also harmed by larger–scale policies and programs. In several court cases, local and state governments have been held vicariously liable for the take of endangered species when their policies or actions caused third parties to commit a take.

The vicarious liability theory, as applied to the ESA, is controversial and has been criticized by numerous scholars. This Note argues that a limited version of the vicarious liability theory is consistent with the text of the ESA and plays an essential role in fulfilling the promise of the ESA’s take prohibition.

The Fall and Rise of the Exit Consent
Keegan S. Drake
PDF

Bond issuers wanting to restructure their distressed debt often propose an exchange offer, in which the issuer persuades its bondholders to swap their present holdings for new bonds capable of being honored. To guard against nonparticipating bondholders, issuers may pair their exchange offers with an exit consent. A use of a bond’s modification clause, an exit consent is a technique by which bondholders participating in the exchange also vote to impair the distressed bonds.

Use of the exit consent raises a contract question about the duty of good faith and fair dealing. For a quarter of a century, exit consents survived judicial scrutiny when they followed the Delaware case Katz v. Oak Industries Inc. Then, in a case emblematic of the recent Eurozone economic crisis, Assénagon Asset Management v. Irish Bank Resolution Corp., an English court found that the exit consent breached this doctrinal duty, seemingly upending Katz’s position as the seminal case on exit consents. This Note argues that such concern is misplaced, concluding that Assénagon augments but does not replace Katz. It proposes reconciling the two cases in a manner that upholds the common values of each case in an effort to provide stable legal principles amid markets in flux.