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Note

An Erie Silence: Erie Guesses and Their Effects on State Courts, Common Law, and Jurisdictional Federalism

By Connor Shaull | December 20, 2019

By Connor Shaull. Full Text. In the landmark U.S. Supreme Court case of Erie R.R. v. Tompkins, the Court broadly interpreted the Judiciary Act’s limitations and noted that: “There is no federal general common law.” This first-year law school lesson appears simple enough: federal courts, when applying any substantive state law, must defer to the…

Note

Note: Addressing the HIPAA-potamus Sized Gap in Wearable Technology Regulation

By Paige Papandrea | December 20, 2019

By Paige Papandrea. Full Text. Wearable technology is wildly popular. It is also wildly unregulated. Millions of consumers buy and use these devices, which can constantly track and transmit a variety of users’ health information. Although this health information is similar to, and in many cases more abundant than, information collected by doctors and health…

Note

Note: A Broken Theory: The Malfunction Theory of Strict Products Liability and the Need for a New Doctrine in the Field of Surgical Robotics

By Christopher Beglinger | December 20, 2019

By Christopher Beglinger. Full Text. The malfunction theory of strict products liability affords a plaintiff an inference of a product defect through the presentation of circumstantial evidence. Under the malfunction theory, a plaintiff may establish a prima facie case by providing evidence of the nature of a product malfunction, evidence eliminating abnormal use of the…

Article

Health Care Costs and the Arc of Innovation

By Neel U. Sukhatme and M. Gregg Bloche | December 20, 2019

By Neel U. Sukhatme and M. Gregg Bloche. Full Text. Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We…

Article

Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States

By Amy J. Cohen | December 20, 2019

By Amy J. Cohen. Full Text. For decades, proponents of restorative justice on the political left have wondered if their preference for “less state” would attract complex bedfellows and political alliances. But it was only as the crisis of mass incarceration hit American cultural and political consciousness that an increasingly wide range of libertarian and…

Article

Public-Private Co-Enforcement Litigation

By Stephanie Bornstein | December 20, 2019

By Stephanie Bornstein. Full Text. Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations.…

Current Issue

Volume 104 - Issue 2

Articles

Paying for Gun Violence

Samuel D. Brunson
By Samuel D. Brunson. Full Text. Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And

Energy and Eminent Domain

James W. Coleman and Alexandra B. Klass
By James W. Coleman and Alexandra B. Klass. Full Text. This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in

Public-Private Co-Enforcement Litigation

Stephanie Bornstein
By Stephanie Bornstein. Full Text. Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations.

Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States

Amy J. Cohen
By Amy J. Cohen. Full Text. For decades, proponents of restorative justice on the political left have wondered if their preference for “less state” would attract complex bedfellows and political alliances. But it was only as the crisis of mass incarceration hit American cultural and political consciousness that an increasingly wide range of libertarian and

Health Care Costs and the Arc of Innovation

Neel U. Sukhatme and M. Gregg Bloche
By Neel U. Sukhatme and M. Gregg Bloche. Full Text. Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We

The Normative Fourth Amendment

Matthew Toksen
By Matthew Tokson. Full Text. For decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those

Notes

Note: A Broken Theory: The Malfunction Theory of Strict Products Liability and the Need for a New Doctrine in the Field of Surgical Robotics

Christopher Beglinger
By Christopher Beglinger. Full Text. The malfunction theory of strict products liability affords a plaintiff an inference of a product defect through the presentation of circumstantial evidence. Under the malfunction theory, a plaintiff may establish a prima facie case by providing evidence of the nature of a product malfunction, evidence eliminating abnormal use of the

Note: Addressing the HIPAA-potamus Sized Gap in Wearable Technology Regulation

Paige Papandrea
By Paige Papandrea. Full Text. Wearable technology is wildly popular. It is also wildly unregulated. Millions of consumers buy and use these devices, which can constantly track and transmit a variety of users’ health information. Although this health information is similar to, and in many cases more abundant than, information collected by doctors and health

An Erie Silence: Erie Guesses and Their Effects on State Courts, Common Law, and Jurisdictional Federalism

Connor Shaull
By Connor Shaull. Full Text. In the landmark U.S. Supreme Court case of Erie R.R. v. Tompkins, the Court broadly interpreted the Judiciary Act’s limitations and noted that: “There is no federal general common law.” This first-year law school lesson appears simple enough: federal courts, when applying any substantive state law, must defer to the

Headnotes

Volume 103: Spring Issue

The Chevronization of Auer

Kristin E. Hickman and Mark R. Thomson
The Supreme Court is poised in Kisor v. Wilkie to reconsider the standard of review known as Auer deference, whereby courts must defer to an agency’s reasonable interpretation of its own regulation. Auer’s defenders have long argued that the standard advances important practical goals, such as simplifying the judicial task and fostering consistency and predictability in the administrative process. During the last two decades, though, courts have engrafted an increasingly complex array of qualifications and exceptions onto Auer’s basic framework. This essay argues that those qualifications and exceptions have seriously undermined the practical rationales that are sometimes cited to support Auer deference, much as the development of a similar set of qualifications and exceptions diminished the practical benefits of Auer’s better-known cousin, Chevron deference.

Why Police Should Protect Complainant Autonomy

Randall K. Johnson
This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. administrative agencies may employ to make more informed policy decisions. The Article does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Article identifies the causes of police complaint inefficiencies by critically assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy.

De Novo Blog

HOUSING IS JUSTICE: THE MINNEAPOLIS RENTERS PROTECTION ORDINANCE IS A STEP IN THE RIGHT DIRECTION FOR CRIMINAL JUSTICE REFORM

January 23, 2020

By: Olivia Levinson, Volume 104 Staff Member A single interaction with the criminal justice system can permanently label someone a “dangerous neighbor” and unwanted in communities.[1] Over the summer of 2019, the Minneapolis City Council recently debated how criminal records can be a barrier to finding housing, eventually creating an amendment to title 12, Chapter…

THE PATH IS CLEARED: A GROWING BODY OF CASE LAW UPHOLDS STATES’ REMOVAL OF NON-MEDICAL VACCINATION EXEMPTIONS; MINNESOTA SHOULD BE NEXT

December 4, 2019

By: Meredith Gingold, Volume 104 Staff Member INTRODUCTION So far in 2019, two events have taken place: (1) more than 1,200 cases of measles have been reported in the United States, in 31 states so far,[1] and (2) 20 states have introduced legislation to expand non-medical exemptions[2] for vaccines or to require doctors to provide…

CARPENTER V. MURPHY: A REEXAMINATION OF THE CREEK NATION IN OKLAHOMA

December 4, 2019

By: Aron Mozes, Volume 104 Staff Member The pending Supreme Court case Carpenter v. Murphy[i] presents an intersection of the history, laws, and legislative actions surrounding the Creek Nation in Oklahoma, as well as a broader re-examination of the relationship between Native American tribes and the federal government. The case considers whether the 1866 territorial…

NO LEG TO STAND ON: HOW THE FEDERAL CIRCUIT IMPROPERLY RESTRICTED THE APPLICATION OF THE COMPETITOR STANDING DOCTRINE TO PATENT CHALLENGERS WHEN ESTABLISHING ARTICLE III STANDING UPON APPEALING AN INTER PARTES REVIEW

November 25, 2019

By: Ryan Fitzgerald, Volume 104 Staff Member The Federal Circuit’s recent holding in General Electric Co. v United Technologies Corp.[i] increases the difficulty for competitors to challenge the validity of a patent in court after an adverse inter partes review (IPR) decision.[ii]  An IPR allows any person or institution to challenge the validity of a…

AN UNCONSTITUTIONAL POLL TAX? PRELIMINARY INJUNCTION PROVIDES INSIGHT ON FLORIDA STATUTE SB7066.

November 20, 2019

By: Seiko Shastri, Vol. 104 Staff Member An estimated 6 million United States citizens do not have the right to vote because of a prior criminal conviction.[1] One-quarter of those disenfranchised individuals––1.5 million Americans––live in the state of Florida.[2] This disenfranchisement has disproportionately affected black residents, preventing nearly 20 percent of black adults of voting…