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Volume 107 - Issue 2

Constraining Criminal Laws

By F. Andrew Hessick and Carissa Byrne Hessick. Full Text. Most criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. Those theories say that, when…

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Public Undersight

By Christina Koningisor. Full Text. The laws governing transparency and accountability in government are deeply flawed and plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set…

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The Character of Jury Exclusion

By Anna Offit. Full Text. Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as…

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Pirate Arbitration

By David Horton. Full Text. The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has transformed the American civil justice system. In a series of controversial opinions, the Court has held that the FAA preempts state law, bars class actions, and empowers companies to delegate questions about the arbitration itself to arbitrators. For…

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Understanding Chilling Effects

By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or…

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Patent Law’s Deference Paradox

By Paul R. Gugliuzza. Full Text.  Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no…

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Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance

By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text. In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because…

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Contractual Depth

By Cathy Hwang & Matthew Jennejohn. Full Text. Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more…

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The Input Fallacy

By Talia B. Gillis. Full Text. Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails…

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Proving Discrimination by the Text

By Deborah A. Widiss. Full Text. The Civil Rights Act of 1964 and other employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts…

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