Law in Times of Disaster

Volume

2025

The 2010 amendment to the Anti-Kickback Statute (AKS) sought to strengthen federal healthcare fraud enforcement by clarifying that Medicare and Medicaid claims submitted to the government “resulting from” AKS violations constitute false claims under the False Claims Act (FCA). However, two words, “resulting from,” have created a deep circuit split over the requisite causation standard. Drawing on burden-shifting frameworks from employment discrimination law, antitrust merger challenges, and fiduciary duty cases, this Comment proposes a burden-shifting approach to AKS-predicated FCA claims. This approach addresses the information asymmetry inherent in healthcare fraud cases—where evidence of kickbacks often remains in defendants’ possession—while protecting against prosecutorial overreach. By leveling the evidentiary playing field, a burden-shifting framework offers a practical middle ground that serves both the government’s interest in combating healthcare fraud while not over prosecuting healthcare professionals with good intent.

In January 2021, the GameStop short squeeze exposed a major vulnerability in the U.S. financial regulatory system: the T+2 settlement cycle. As part of its response, the Securities and Exchange Commission moved from two-day to one-day settlement. The next step is to reform the settlement process further. This Comment argues that the SEC should transition to T+0, or same-day, settlement. This transition will require a significant modernization of industry infrastructure. But by collapsing the settlement window, the market can drastically reduce risk, lower capital requirements for intermediaries, and enhance overall market stability. Regulators must embrace this shift to create a safer, more efficient marketplace for all.

The Federal Tort Claims Act (FTCA) broadly waives the federal government’s sovereign immunity, but the discretionary function exception (DFE) preserves immunity for acts grounded in judgment or choice. A doctrinal tension arises from the Supreme Court’s instruction in Berkovitz v. United States that the DFE does not apply when a directive “specifically prescribes a course of action.” This Comment argues for a new interpretation of Berkovitz’s first prong: a directive should eliminate discretion only when it specifies concrete actions that advance the overarching policy objectives of the government operation.

To fall within the scope of SOX’s anti-retaliation provisions, a whistleblower must demonstrate he had an “objectively reasonable belief” that his employer’s conduct violated the laws or regulations enumerated in § 1514A. Over time, the Administrative Review Board (ARB) has provided varying interpretations of § 1514A’s objective reasonableness standard, which U.S. Courts of Appeals have adopted or modified at different points in time. As a result, a complex circuit split has emerged. After analyzing SOX’s legislative history, the procedure for filing a complaint, the ARB’s evolving interpretation of § 1514A, the circuit split, and objective reasonableness in an analogous context, this Comment proposes an objective reasonableness standard that would bridge the current divide.

In response to gun violence, many states have attempted to implement gun control laws. Some of these gun control laws have been challenged under the Second Amendment, with parties seeking preliminary injunctions to halt these laws’ enforcement until a final judicial decision has been reached. In legal disputes over whether to grant a preliminary injunction over various gun control laws, circuits are split as to whether an alleged violation of the Second Amendment is presumptively irreparable, i.e., unable to be adequately remedied after a final judgment. This Comment argues that Second Amendment violations are entitled to a presumption of irreparable harm because, as with rights protected by the First Amendment, Second Amendment rights are of an intangible and unquantifiable nature that protects against governmental infringement and deterrence.

Curfews imposed against an entire civilian population are extremely rare. Despite this, the amount of curfews has recently skyrocketed in the United States as government officials use this sweeping power to respond to emergencies. This Comment evaluates the constitutional rights implicated by general curfew orders, namely the right to travel and the right to speak in public forums. Then, this Comment surveys the current circuit split. Lower courts significantly diverge in their standard of review of curfew orders and apply three very different forms of review: deference, intermediate scrutiny, and strict scrutiny. This Comment argues that courts should subject general curfew orders to strict scrutiny because curfews impose direct constraints that abridge fundamental constitutional rights. Additionally, this Comment contends that challenges to general curfews on right to travel grounds are a valid, but neglected, route for petitioners. General curfews directly abridge both intrastate and interstate travel. Moreover, the right to travel provides an independent hook to apply strict scrutiny when a court determines that lesser scrutiny applies on First Amendment grounds.

As litigation against e-cigarette manufacturers continues to develop, it is increasingly evident that one of the biggest obstacles to bringing private claims will be avoiding preemption under the Federal Food, Drug, and Cosmetic Act (FDCA). This Comment argues that one untested yet promising pathway for injured plaintiffs to avoid preemption is to bring FDCA-based negligence per se claims. By examining precedent involving other FDCA provisions, this Comment assesses the viability of such claims and concludes that the FDCA’s tobacco-specific regulations are unique in both their articulated standards of care and their regulatory precision. These features may allow negligence per se claims grounded in tobacco provisions to avoid preemption where similar claims based on other FDCA sections have not.

Section 1324 of Title 8 of the U.S. Code prohibits “harboring” undocumented immigrants. But for decades, courts have disagreed over what counts as harboring and what mens rea is required to prove it. These questions have only grown more urgent as immigration has been repeatedly framed as a national crisis. This Comment argues that courts should apply different mens rea standards depending on context: a narrow intent standard in sanctuary cases and a broader substantial facilitation standard in trafficking cases. This framework better reflects the moral and legal distinctions between protection and exploitation, aligns with legislative history and intent, and draws on established criminal law principles that vary culpability based on motive. Alternatively, this Comment proposes that courts should incorporate motive into the substantial facilitation test, distinguishing sanctuary from trafficking in practice. Clarifying § 1324’s mens rea requirement would bring needed coherence to a fragmented doctrine, reduce the chilling of humanitarian aid, and better target the exploitation the statute was originally meant to address.

This Comment unpacks how doctrine has split among circuit courts regarding whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. As a resolution to this circuit split, this Comment proposes that courts should adopt a multi-factor test, utilizing the Fourth Circuit’s analysis as a starting point. Applying the themes and practices of Takings jurisprudence, this Comment ultimately argues that courts should weigh the foreseeability of the invasion, the severity of the interference, the nature of the land, and the owner’s investment-back expectations about the land’s use.

This Article examines the need and justification for a more robust approach to extreme heat by FEMA under the Stafford Act. I conclude that—given the severity of extreme heat events, their disproportionate effects on vulnerable populations, and the broad protection promised under the Stafford Act—immediate action is needed.