The APA and the Assault on Deference
By Ronald M. Levin. Full Text. Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act (APA) prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved…
Continue ReadingStealing (Identity) From the Poor
By Sara S. Greene. Full Text. The law of data breaches is new, dynamic, and evolving. The number and complexity of breaches increases each year and legal scholars, courts, and policymakers scramble to respond. In 2019, 14.4 million consumers became victims of identity theft, the most problematic consequence of data breaches for consumers. Indeed, one-third…
Continue ReadingThe Law School as a White Space
By Bennett Capers. Full Text. In this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it is past time to acknowledge how law schools function as “white spaces.” For starters, there are the numbers. There is a reason why just…
Continue ReadingRemembrance of and Tribute to Walter F. Mondale
By Garry W. Jenkins. 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, Mondale was the 42nd…
Continue ReadingCivil Disobedience in the Face of Texas’s Abortion Ban
By Alexi Pfeffer-Gillett. Full Text. On September 1, 2021, the Supreme Court refused to block Texas Senate Bill 8 from going into effect, despite the bill overtly banning constitutionally protected access to abortions before fetal viability. The Court reasoned that because the statute only allowed for private plaintiffs—and not government officials—to bring civil lawsuits to…
Continue ReadingCybersecurity for Idiots
By Derek E. Bambauer. Full Text. Cybersecurity remains a critical issue facing regulators, particularly with the advent of the Internet of Things. General-purpose security regulators such as the Federal Trade Commission continually struggle with limited resources and information in their oversight. This Essay contends that a new approach to cybersecurity modeled on the negligence per…
Continue ReadingThe Federal Arbitration Act, Rules of Decision, and Congress’ Exercise of Judicial Power
By Anthony J. Meyer. Full Text. Long before this Article’s germination, Professor David Schwartz quipped that the Federal Arbitration Act (FAA) “is unconstitutional . . . and no one has noticed.” The observation is both delightfully sardonic and—for a variety of reasons, including those expounded in this Article—true. Professor Schwartz asserts a brilliantly creative thesis…
Continue ReadingVoigt Deference: Deferring to a State Agency’s Interpretation of a Federal Regulation
By Justin W. Aimonetti. Full Text. A federal court will sometimes defer to a federal agency’s interpretation of a federal regulation. But conventional wisdom suggests that federal courts review with fresh eyes state agencies’ interpretations of the same. This Essay suggests a different approach—one called Voigt deference named after a recent Eighth Circuit decision—and one…
Continue ReadingEverything’s at Stake: Preserving Authority to Prevent Gun Violence in the Second Amendment’s Third Chapter
By Jonathan E. Lowy, Christa Nicols, & Kelly Sampson. Full Text. In New York State Rifle and Pistol Association (“NYSRPA”) v. Bruen, the U.S. Supreme Court will decide to what extent New York (or any state) can restrict carrying concealed handguns in public. “Gun rights” advocates seek to establish a sweeping interpretation of the Second Amendment,…
Continue ReadingExtending Pandemic Flexibilities for Opioid Use Disorder Treatment: Authorities and Methods
By Bridget C.E. Dooling & Laura Stanley. Full Text. This Essay evaluates two specific flexibilities granted during the COVID-19 pandemic that made it easier for patients to access buprenorphine and methadone. First, the Drug Enforcement Administration (DEA) allowed practitioners to prescribe buprenorphine using telemedicine without first conducting an in-person medical exam. Second, the Substance Abuse…
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