Presidential Law
By Shalev Roisman. Full Text. We know a great deal about how agencies exercise power. They use notice-and-comment procedures to create rules and trial-like adjudication when applying law to individuals. This is the field of administrative law. But what of the President? Like agencies, the President issues law-like rules, adjudicates whether individuals have violated applicable…
Continue ReadingThe Paradox of Exclusive State-Court Jurisdiction Over Federal Claims
By Thomas B. Bennett. Full Text. Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims to the exclusive…
Continue ReadingThe Paradox of Exclusive State-Court Jurisdiction Over Federal Claims
By Thomas B. Bennett. Full Text. Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims to the exclusive…
Continue ReadingFacial Recognition and the Fourth Amendment
By Andrew Guthrie Ferguson. Full Text. Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo or identifying every person who walks past a digital camera, the…
Continue ReadingSiting Natural Gas Pipelines Post-PennEast: The New Power of State-Held Conservation Easements
By Zach Wright. Full Text. The Natural Gas Act (NGA) governs the siting of interstate natural gas pipelines. There is not a federal body that sites pipelines—instead, the NGA delegates federal eminent domain to private actors to site pipelines through a certificate of need. Private actors have condemned private and state land to site pipelines…
Continue ReadingThe Critical Need for State Regulation of Assisted Living Facilities: Defining “Critical Incidents,” Implementing Staff Training, and Requiring Disclosure of Facility Data
By Lexi Pitz. Full Text. Assisted living facilities are wildly popular among elderly Americans. This trend is expected to persist due to increasing life expectancy, an aging baby boomer population, and the growing preference for assisted living facilities over nursing homes. Despite their growing popularity, the assisted living industry remains alarmingly underregulated at both the…
Continue ReadingStanding Up to Bad Patents: Allowing Non-Infringing Direct Competitors to Satisfy the Article III Standing Requirements Appealing an Adverse Inter Partes Review Decision to the Federal Circuit
By Ryan Fitzgerald. Full Text. In 2011, through the America Invents Act, Congress created a new administrative procedure, inter partes review (IPR), to allow third parties to challenge issued patents before the Patent Trial and Appeal Board (PTAB). It did so in recognition “that questionable patents [were] too easily obtained and [were] too difficult to…
Continue ReadingEvidentiary Irony and the Incomplete Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106
By Daniel J. Capra and Liesa L. Richter. Full Text. In recent years, there have been many calls and suggestions for a more equitable criminal justice system. Although sometimes overlooked in that dialogue, the fair operation of the Federal Rules of Evidence is a crucial component in ensuring such an equitable system. Unfortunately, the interpretation…
Continue ReadingThe New Law of Gender Nonconformity
By Naomi Schoenbaum. Full Text. A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the anti-stereotyping aims of sex…
Continue ReadingWays of Price Making and the Challenge of Market Governance in U.S. Energy Law
By William Boyd. Full Text. Price formation has emerged as one of the most complex and contested areas of U.S. energy law. In the natural gas markets, questions about the integrity of price indices, which serve as key benchmarks for billions of dollars in transactions and investments across the industry, have been the subject of…
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