Handling the Mayo Powder Keg: Emphasizing Preemption in § 101 Biotechnology Inquiries
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…
Continue ReadingA Century of Business in the Supreme Court, 1920–2020
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…
Continue ReadingTerm Limits and Embracing a Political Supreme Court
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…
Continue ReadingAntitrust 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
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…
Continue Reading“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing
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…
Continue ReadingWho Decides Where the Renewables Should Go?: A Response to Danielle Stokes’ Renewable Energy Federalism
By Michael B. Gerrard. Full Text. One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition—delays in state and…
Continue ReadingChilling Effects and Unequal Subjects: A Response to Jonathon Penney’s Understanding Chilling Effects
By Karen Levy. Full Text. The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own…
Continue ReadingK Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions
By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question.…
Continue ReadingK Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions
By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question.…
Continue ReadingFighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools
By Joshua Gutzmann. Full Text. Fox News mentioned critical race theory (CRT) more than 1,900 times from April to mid-July of 2021, marking CRT as a new focus of Republicans and conservative donors and sparking a movement to ban teaching of the theory in schools. Nine states have already passed legislation intended to ban the…
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