Note: Incognito Mode Is in the Constitution
By Travis Panneck. Full Text. How much should the government be able to learn about an internet user without probable cause? Following the third-party doctrine, courts have held that internet users have no reasonable expectation of privacy in information “turned over” to internet service providers through ordinary use of the internet. Through minimal compulsory process,…
Continue ReadingRegulation in Transition
By Bethany A. Davis Noll and Richard L. Revesz. Full Text. Presidents have long sought to roll back their predecessors’ regulatory policies. They have typically relied on efforts to repeal regulations and to withdraw unpublished or non-final regulations pursuant to “stop-work” orders directed at agency heads. President Trump is no exception. But rather than stick…
Continue ReadingNote: A Monumental Task: How Should Courts Review Challenges to Presidential Actions Taken Pursuant to the Antiquities Act?
By Bryan Mette. Full Text. The Antiquities Act of 1906 authorizes the President to designate national monuments on federally owned lands. Administrations have employed this authority to create approximately 160 national monuments. In December 2017, President Trump raised the ire of national monument proponents when he drastically reduced the size of Grand Staircase-Escalante and Bears…
Continue ReadingContracting for Fourth Amendment Privacy Online
By Wayne A. Logan and Jake Linford. Full Text. For decades, the Supreme Court has applied what is known as the third-party doctrine, which allows police, acting without a warrant, to secure information that an individual has voluntarily revealed to others. Scholars have long criticized the doctrine and it only narrowly escaped its formal demise…
Continue ReadingSolving Banking’s “Too Big To Manage” Problem
By Jeremy C. Kress. Full Text. The United States’ banking system has a problem: some financial conglomerates are so vast and complex that their executives, directors, and shareholders cannot oversee them effectively. Recognizing this “too big to manage” (TBTM) dilemma, both major political parties have endorsed breaking up the banks, and bipartisan coalitions in Congress…
Continue ReadingRestructuring Rebuttal of the Marital Presumption for the Modern Era
By Jessica Feinberg. Full Text. The longstanding marital presumption of paternity, under which a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage, has reached a critical juncture. Pursuant to the Supreme Court’s mandate that states provide marriage to same-sex couples on the…
Continue ReadingCommunity in Property: Lessons from Tiny Homes Villages
By Lisa T. Alexander. Full Text. The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities remains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States,…
Continue ReadingResponse to McGeveran’s The Duty of Data Security: Not the Objective Duty He Wants, Maybe the Subjective Duty We Need
by Justin (Gus) Hurwitz. Available here.
Continue ReadingHalo from the Other Side: An Empirical Study of District Court Findings of Willful Infringement and Enhanced Damages Post-Halo
The United States patent system is designed to reward inventors and patent holders who contribute novel, impactful, and non-obvious work. To maintain this system, Congress authorized damages as a remedy for infringed inventions. Whether compensatory or punitive, the system’s main goal is to prevent the proliferation of unwanted “infringing” behavior. Outside of that guidance, there is little definition of what qualifies as egregious behavior, thereby leaving lower courts significant discretion to decide how much to award in damages. Integral to the allocation of damages is the standard by which courts evaluate egregious, or “willful,” behavior.
Continue ReadingThe “Too Big to Fail” Problem
“Too big to fail”—or “TBTF”—is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of privatizing gains and socializing losses it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.
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