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The Old Hand Problem

By Xiao Wang | January 31, 2023

By Xiao Wang. Full Text. Senior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible.…

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Article

Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help

By Christiana Ochoa, Kacey Cook, and Hanna Weil | January 31, 2023

By Christiana Ochoa, Kacey Cook, and Hanna Weil. Full Text. Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level…

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Article

“Can You Hear Me Now?”: The Right to Counsel Prior to Execution of a Cell Phone Search Warrant

By Nathaniel Mensah | January 31, 2023

By Nathaniel Mensah. Full Text. As advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and…

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Article

Americans, Beyond States and Territories

By Tom C.W. Lin | January 31, 2023

By Tom C.W. Lin. Full Text. For over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and…

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Article

Public Law, Private Platforms

By Andrew Keane Woods | January 31, 2023

By Andrew Keane Woods. Full Text. Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become…

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Note

School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans

By Dylan Saul | January 31, 2023

By Dylan Saul. Full Text. In 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the…

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Note

An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants

By Helen Winters | January 31, 2023

By Helen Winters. Full Text. In the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of…

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Current Issue

Volume 107 - Issue 3

Articles, Essays, & Tributes

The Old Hand Problem

Xiao Wang
By Xiao Wang. Full Text. Senior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible.

Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help

Christiana Ochoa, Kacey Cook, and Hanna Weil
By Christiana Ochoa, Kacey Cook, and Hanna Weil. Full Text. Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level

“Can You Hear Me Now?”: The Right to Counsel Prior to Execution of a Cell Phone Search Warrant

Nathaniel Mensah
By Nathaniel Mensah. Full Text. As advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and

Americans, Beyond States and Territories

Tom C.W. Lin
By Tom C.W. Lin. Full Text. For over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and

Public Law, Private Platforms

Andrew Keane Woods
By Andrew Keane Woods. Full Text. Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become

Notes

An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants

Helen Winters
By Helen Winters. Full Text. In the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of

School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans

Dylan Saul
By Dylan Saul. Full Text. In 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the

Headnotes

Volume 107: Fall Issue

“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing

Aliza Hochman Bloom
By Aliza Hochman Bloom. Full Text. In June, the Washington Supreme Court held that courts must consider an individual’s race as part of the totality of circumstances when determining whether that individual has been seized by a police officer. Like the Fourth Amendment of the U.S. Constitution, Washington’s parallel constitutional provision requires that the determination

Antitrust Reformers Should Consider the Consequences of Mandatory Treble Damages: What the Admonition Against Putting New Wine in Old Wineskins Can Teach Us About Antitrust Reform

Henry J. Hauser, Tiffany L. Lee, and Thomas G. Krattenmaker
By Henry J. Hauser, Tiffany L. Lee, and Thomas G. Krattenmaker. Full Text. The debate over antitrust reform is reaching a crescendo. Several proposals have been introduced in Congress and state legislatures to expand the scope of substantive antitrust rules governing marketplace behavior. Missing from the current discussion, however, is careful consideration of whether these

Term Limits and Embracing a Political Supreme Court

Guha Krishnamurthi
By Guha Krishnamurthi. Full Text. In the run up to the 2020 Presidential election, then-candidate Joseph R. Biden, Jr. lamented the increasing dysfunction of the United States Supreme Court and campaigned on rectifying the august institution. This was indeed part of Biden’s general message: a return to norms, normalcy, and mutual respect. The problems with

A Century of Business in the Supreme Court, 1920–2020

Lee Epstein and Mitu Gulati
By Lee Epstein and Mitu Gulati. Full Text.  A decade and a half into its life, we ask: how pro-business is the Roberts Court? Using a simple objective measure—how often does business win in the Court when it is fighting a non-business—we find that the Roberts Court may be the most pro-business Court in a

Handling the Mayo Powder Keg: Emphasizing Preemption in § 101 Biotechnology Inquiries

Zachary M. Robole
By Zachary M. Robole. Full Text.  To incite a jury’s emotions, attorneys have stated that the “clear and convincing” evidentiary standard required to invalidate a patent is the same standard of proof required to justify taking a child away from a parent. Although such statements are likely an evidentiary rule violation, the point is illustrative

De Novo Blog

KEEP ROLLING: AFTER PROVIDING AUTOMATIC EXPUNGEMENT FOR CERTAIN MARIJUANA OFFENSES MINNESOTA SHOULD ENACT AUTOMATIC EXPUNGEMENT FOR OTHER CRIMINAL RECORDS

March 21, 2023

By: Abby Ward, Volume 107 Staff Member The racially discriminatory impact from the War on Drugs is clear,[1] and while marijuana legalization is one step in addressing the inequities of America’s criminal justice system, the work does not end there. States should also enact broader expungement reforms. This 2023 session, Minnesota is likely going to…

CALIBRATING THE SCOPE OF DISCLOSURE: PREVIEWING THE SUPREME COURT’S OPPORTUNITY TO CLARIFY PATENT LAW’S ENABLEMENT STANDARD

March 20, 2023

By: Maxwell H. Terry, Volume 107 Staff Member While the technical subject matter of a patent can grow inordinately complex, the predominant theory underlying patent law is relatively straightforward. In exchange for the right to exclude others from making, using, or selling the invention claimed by a patent, the inventor must disclose the invention to…

THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT CUMMINGS MEANS FOR THE FUTURE OF CIVIL RIGHTS

February 27, 2023

By: Amy Cohen, Volume 107 Staff Member In what seems like a never-ending string of catastrophic rulings implicating our nation’s future and individual rights,[1] about ten months ago the Supreme Court laid down a major decision altering the availability of remedies for civil rights claimants that has largely gone unnoticed by the public. When petitioner…

A CONVERSATION WITH THE CHIEF: A MODERN REFLECTION ON THE HAPPINESS, HEALTH, AND ETHICS OF THE LEGAL PROFESSION WITH CHIEF JUDGE PATRICK J. SCHILTZ

February 24, 2023

By: Katheryn Furlong, Volume 107 Staff Member Dear Law Student: I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth–and, in the view of many, one of the most unethical. The…

LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING

February 23, 2023

By: Earl Lin, Volume 107 Staff Member It is a well-known phenomenon that lawyers often communicate in their own “peculiar language . . . characterized by antique jargon, pomposity, affected displays of precision, ponderous abstractions, and hocus-pocus incantations.”[1] Indeed, lawyers are so notorious for their clumsy writing that a whole cottage industry of gag gifts…