Volume 19/ Number 1/ 2015

ARTICLES

 

BRANDENBURG FOR GROUPS

Steven R. Morrison

19 Lewis & Clark L. Rev. 1 (2015)

Contemporary emerging scholarship on the First Amendment right of assembly is based primarily on either normative arguments arising from post-World War II cases or constitutional originalism that looks to the Framers’ intent. This scholarship continues to treat the advent of substantive First Amendment rights in the World War I era as isolated to the speech right. That is an incomplete picture because the formative First Amendment cases were assembly cases just as much as they were speech cases. This Article fills that historical gap and, from it, generates a doctrinal argument in favor of the assembly right.

Historically, it shows that the seminal WWI cases were part of a milieu that entailed the socio-political control primarily of groups, not individuals’ speech. The mechanism was membership crime—criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article recovers assembly as a core First Amendment right, not secondary to speech. Doctrinally, this Article shows that at the advent of the substantive First Amendment it was assembly, rather than speech, that was often the primary right at issue. Indeed, even Brandenburg v. Ohio was an assembly case before it was a speech case. This Article therefore presents what it calls the “Brandenburg for groups” test, which would protect groups—even some criminal conspiracies—if they pose no imminent likelihood of substantive crime.

This test responds to emerging scholarship on the assembly right, most notably the debate between John D. Inazu and Ashutosh Bhagwat on the utility of Brandenburg v. Ohio to protect that right. It traces a constitutionally and normatively appropriate line between protected and unprotected assembly that is currently lacking but is necessary to protect the democratic function of groups while continuing to ensure public safety.

A CONTEXTUAL APPROACH TO CLAIM OF RIGHT IN ADVERSE POSSESSION CASES: ON VAN VALKENBURGH V. LUTZ, BAD FAITH, AND MISTAKEN BOUNDARIES

Luke Meier

19 Lewis & Clark L. Rev. 47 (2015)

This Article shows that, in adverse possession disputes, a uniform approach to the claim of right inquiry can produce undesirable results. To reach the desired result in one type of adverse possession case, a court might be forced to adopt a particular approach for determining whether the possessor had the required state of mind (“claim of right”). In a different type of adverse possession case, however, using this same approach might produce a result that the court finds objectionable. Thus, to reach the desired outcome for each type of adverse possession case a court must resolve, a court might be compelled to adopt a different test for measuring the possessor’s state of mind. This Article suggests that much of the confusion regarding the claim of right inquiry can be attributed to a failure to recognize the analytical point made herein—namely, that a uniform approach to the claim of right inquiry will often be problematic. Recognizing that adverse possession arises in factually distinct contexts—and accepting that different rules could apply in each of these contexts—should resolve much of the confusion associated with the claim of right inquiry.

PIERCING THE FIDUCIARY VEIL

Colin P. Marks

19 Lewis & Clark L. Rev. 73 (2015)

Limited partnerships (LPs) and limited liability companies (LLCs) permit formation with a unique management structure in that these entities may be managed by another limited liability entity, such as a corporation. Thus, the true managers are those individuals who manage the manager. It is well settled that the managing entity, such as a corporate general partner, owes default fiduciary duties, but what of these second-tier managers? Technically, it is the managing entity that owes the duties, not the managing entity’s owners, officers, and directors, yet courts have struggled with strict adherence to this separation when it would seem inequitable to do so. Unfortunately, courts and commentators have failed, thus far, to articulate a clear rule as to when fiduciary duties should attach to second-tier managers that also makes allowances for countervailing concerns regarding the scope of such a duty. This article offers an approach aimed at resolving this problem by simply reexamining what it is that courts are doing when they attach liability. In the process of doing so, this Article makes three major contributions to the existing scholarship. First, it is the only article to describe the three main approaches courts have adopted to address the problem. Second, the article explains why alternate equitable theories, as currently applied, are inadequate to address this issue. Finally, this Article offers a unique solution as to when fiduciary duties should attach to second-tier managers. Specifically, this article posits that liability should attach under a form of piercing the corporate veil. Unlike traditional piercing, which focuses on the abuse of the corporate form, this limited form of piercing, which I dub “piercing the fiduciary veil,” should focus on the abuse of the control exercised by second-tier managers.

THE PRIVACY-INNOVATION CONUNDRUM

Tal Z. Zarsky

19 Lewis & Clark L. Rev. 115 (2015)

The age of Big Data is upon us. The analysis of personal data is generating greater opportunities for privacy breaches as well as innovative progress. Governments worldwide are striving to establish a proper response to the ongoing practices of personal-data collection, analysis, and usage. This regulatory discourse immediately leads to a discussion of the relation between privacy rules and the broad and complex concept of innovation. Privacy laws could either enable or impede the flow of personal data. Availability and access to such data can either enhance or undermine innovation.

The overarching debate on the relation between privacy and innovation is constantly heating, especially in the political and policy world. In addition, the link between privacy and innovation raises a variety of complicated analytical questions, hence calls for a nuanced academic and theoretical discussion. This Article introduces the first attempt to compressively map out and evaluate the various ways in which the relationship between privacy and innovation could be articulated.

In Part II, the Article launches the discussion by providing foundational working definitions of the concepts of privacy and innovation. Thereafter, it maps out five possible links between privacy and innovation. This Part concludes that among the different arguments, the “privacy-versus-innovation” theme is of greatest interest and relevance to the current academic and policy discourse. Part III scrutinizes this latter theme closely. At first blush the “privacy-versus-innovation” argument seems absurd or intentionally manipulative. Yet a deeper examination shows that it might rely on the argument that peripheral privacy rights are potentially uncertain or overbroad.

Part IV strives briefly and cautiously to move the “privacy-versus-innovation” argument, and the cross-Atlantic policy debate it involves, to the empirical realm. Here the Article confronts the possible linkage between lenient privacy laws in the United States and the success of U.S. firms in the internet/ICT environment, as opposed to strict privacy and relative failure in Europe. This Part strives to properly frame the meaning of this linkage in the underlying privacy–innovation discussion.

In addition, Part IV carefully examines the policy implications of recognizing a causal relationship, as opposed to mere linkage, between privacy and innovation in the United States and the EU. One course of action would be to change the existing EU data-protection scheme and to assure the persistence of lenient privacy laws in the United States. However, other theories and policy steps, which account for the way laws shape technologies in a global setting, might recommend the adoption of a global, strict privacy regime. The Article concludes by alluding to the most recent trends and transactions in global ICT markets, which might indicate a new direction for privacy, innovation, and the interaction between them.

 

NOTES & COMMENTS

 

PULLED FROM THIN AIR: THE (MIS)APPLICATION OF STATUTORY DISPLACEMENT TO A PUBLIC TRUST CLAIM IN ALEC L. V. JACKSON

Lynn S. Schaffer

19 Lewis & Clark L. Rev. 169 (2015)

THE FINEST OF FINE LINES: RANDOLPH FERNANDEZ, AND WHAT REMAINS OF THE FOURTH AMENDMENT WHEN A ROOMMATE CONSENTS TO A SEARCH

Emily Matasar

19 Lewis & Clark L. Rev. 203 (2015)

MAKING BAIL AND MELTING ICE

Eric Brickenstein

19 Lewis & Clark L. Rev. 229 (2015)