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Volume 106 - Issue 3

Chilling 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…

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Size Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime

By Patrick Riley Murray. Full Text. The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of…

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Show Me the Money: Addressing the Oversight Gap in Private Foundation Donations to Donor-Advised Funds

By Kerry Gibbons. Full Text. Americans’ charitable giving habits are changing. Since the 1990s, a new form of charitable giving (donor-advised funds, or “DAFs”) has skyrocketed in popularity. In 2018, DAFs held at least $72 billion in charitable dollars—representing a 200% increase from four years prior. DAFs’ ascendance can be attributed to their ease of…

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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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Remembrance of and Tribute to Walter F. Mondale

By 30th Attorney General of Minnesota Keith Ellison. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39,…

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