No Privilege to Pollute: Expanding the Crime-Fraud Exception to the Attorney-Client Privilege
By Tom Lininger. Full Text. This Article argues that a venerable rule of evidence—the attorney-client privilege—is due for reform. In particular, I propose the expansion of the crime-fraud exception to the attorney-client privilege. The exception presently only applies to crimes and civil frauds. I argue that the exception should extend to certain violations of civil…
Continue ReadingRestoring ALJ Independence
By Richard E. Levy and Robert L. Glicksman. Full Text. Institutional structures that protect the impartiality of federal agency adjudicators and insulate them from undue political pressure are essential to the constitutional legitimacy of agency adjudication. Those structures are crumbling, leaving the administrative law judges (ALJs) who conduct formal adjudications for the federal government increasingly…
Continue ReadingFun with Reverse Ejusdem Generis
By Jay Wexler. Full Text. In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the…
Continue ReadingNavigating College Athlete Endorsements Around School Sponsorships
By Campbell Sode. Full Text. Colleges generally resist formal employment relationships with their athletes. But pending NCAA rules that will allow college athletes to solicit third-party endorsements are a game-changer. College athletic departments have lucrative partnerships with companies like Nike. These school sponsors derive significant intrinsic value from the fact that millions of fans will…
Continue ReadingLegal Writing’s Harmful Psyche
By Kevin Bennardo. Full Text. This essay argues that many in the legal writing discipline view themselves in a way that is harmful to the discipline’s success. First, the essay establishes that many legal writing professors view themselves as victims of oppression within the legal academy. Second, it relies on social psychology research to demonstrate…
Continue ReadingReconstruction in Legal Theory
By George Rutherglen. Full Text. This essay examines the well-known difficulties encountered by legal theorists in offering a justification for Brown v. Board of Education in the immediate aftermath of the decision. It locates these difficulties in the inadequacy of legal theory at the time, which had taken a turn away from normative principles towards…
Continue ReadingCase-Linked Jurisdiction and Busybody States
By Howard M. Erichson, John C.P. Goldberg, and Benjamin C. Zipursky. Full Text. Abstract: Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case—and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court—the Supreme Court has suggested that the distinctiveness of specific personal…
Continue ReadingNonessential Businesses and Liability Waivers in the Time of COVID-19
By Zahra Takhshid. Full Text. Abstract: States are gradually reopening after months of lockdown. However, the risk of exposure to the deadly COVID-19 virus still remains. While states would like to have the economy up and running, the price that small businesses may be forced to pay following possible coronavirus personal injury lawsuits may drive…
Continue ReadingBostock, LGBT Discrimination, and the Subtractive Moves
By Andrew Koppelman. Full Text. Abstract: In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced…
Continue ReadingFrank Zimring Responds
By Franklin Zimring. Full Text. This short Essay is a summary of my reply to the presentations at the Minnesota Law Review’s symposium in November of 2019 in Minneapolis, titled “Mass Incarceration as a Chronic Condition: Diagnosis, Prognosis, and Treatment.” I outline the four principal sections of my forthcoming book’s analysis and then discuss and…
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