Elise Kostial, one of our Chapter’s current Executive Vice Presidents, was awarded the A. Leon Higginbotham/Benjamin N. Cardozo Prize for the best preliminary round brief in the 2020-2021 Morris Tyler Moot Court of Appeals. Elise was one of eight semifinalists in the Moot Court competition this year, in which she argued Department of Justice v. House Committee on the Judiciary. The case concerns a congressional application for the grand-jury material arising out of the investigation into Russian interference in the 2016 presidential election led by Special Counsel Robert Mueller. The House sought to obtain otherwise confidential grand-jury material under the “judicial proceeding” exception of Federal Rule of Criminal Procedure 6(e). The question before the Court is whether an impeachment trial constitutes a “judicial proceeding” for the purposes of the Rule, so that a congressional subpoena may be “preliminary to” or “in connection with” the proceeding. Congratulations Elise!
Zachary J. Lustbader
A Note by Zachary J. Lustbader ‘21, one of the Executive Vice Presidents of our Chapter last year, was published in Volume 130, Issue 7 of the Yale Law Journal. His note, Title 18 Insider Trading, argues for a general theory of insider trading liability under the fraud prohibitions contained in Title 18 of the U.S. Criminal Code. Zach argues that the current doctrine around insider trading liability grounded by SEC Rule 10b-5 lends itself to inconsistent application by judges and prosecutors. He argues, alternatively, for a new regime which classifies insider trading as embezzlement under Title 18, rather than as securities fraud under 10b-5. For this piece, Zach also won the Colby Townsend Prize for the best paper by a second-year student and the Judge Ralph K. Winter Jr. Prize for the best student paper written in corporate law. His Note can be found here.
Holden Tanner ’21 recently finished a paper titled Constitutional Norms in Originalist Adjudication being circulated for publication. Holden was the Vice President of Academic Affairs last year. In this paper, Holden argues against the prevailing inclination among originalists and textualists to disregard any role for norms in judicial interpretation and focus exclusively on text and intent. Alternatively, he argues that a focus on norms will equip judges with a useful tool that can bolster originalist jurisprudence and help inform originalists on the role of forms and limits of originalist jurisprudence. Norms can play an important role in in key areas of adjudication, such as workability analysis in stare decisis consideration and understanding the role of prudential influences in constitutional construction. Holden’s paper can be found here.
Ben Daus, 2021 graduate of our Chapter, was published in the Journal of National Security Law & Policy this past semester. His article, The Militia Clauses and the Original War Powers, explores how the Militia Clauses shaped the original War Powers. He argues that the Militia Clauses both empowered the Federal Government at the Founding, while simultaneously providing Congress, the states, and citizens with both functional and formal checks on the Executive’s use of the War Powers. In the spirit of Prof. Akhil Amar, Ben argues that the militia represents an American constitutional ethos that may aid our application of the War Powers to changing times. His piece can be found here.
Ben Silver & Michael “Motti” Slomovics
The Yale Law & Policy Review published an article inter alia written by 2021 graduate and chapter members Michael Slomovics and Benjamin Silver. Their article, Retiring the 401(k): A New Framework for Retirement Savings argues for eliminating the traditional and Roth 401(k) account completely by a certain date to be determined by Congress in order to expand access to tax-advantaged retirement savings for middle- and lower-class workers. They propose an alternative regime which consists exclusively of traditional and Roth Individual Retirement Accounts and argue for raising the current contribution limitations for IRAs. Michael and Ben’s piece can be found here.