Testing Periods and Outcome Determination in Criminal Cases
By Fiona Doherty. Full text here. This Article introduces the concept of “Testing Periods” to explain how U.S. courts sort criminal defendants for incarceratory and non-incarceratory results. A Testing Period is a time period during which a criminal defendant agrees to abide by a set of prospective rules (such as avoiding “dirty urines” and remaining…
Continue ReadingNote: Material Breach, Material Disclosure
By Tash Bottum. Full text here. Federal disclosure law requires companies to report certain types of events on a current basis. This reporting regime aims to promote transparency, enhance informed investments, and protect investors. However, the disclosure requirements are currently governed by a vague materiality standard, which fails to adequately guide companies in determining whether…
Continue ReadingRegime Congruence: Rethinking the Scope of State Responsibility for Transboundary Environmental Harm
By Maria L. Banda. Full text here. The advent of the Anthropocene has extended the reach of environmental harm: from offshore drilling to geoengineering and climate change, activities in one State can increasingly injure people far beyond its borders. States have longstanding rights under international law to protect their citizens from such harms. In practice,…
Continue ReadingNote: The Last Judicial Frontier: The Fight for Recognition and Legitimacy of Tribal Courts
By Robert J. Wild. Full text here. Rule 10 of the Minnesota General Rules of Practice governs the recognition and enforcement of tribal court judgments in Minnesota state district courts. Since its adoption in 2003, the rule has led to delays in enforcement and to the denial of judgments that are mandated to be enforced by…
Continue ReadingNote: When Added Hurdles Cause Actual Prejudice: Exempting Knowing-Use-of-Perjured-Testimony Claims from Brecht Analysis on Collateral Review
By Melanie A. Johnson. Full text here. The knowing use of perjured testimony is considered one of the most serious constitutional trial errors established in Brady v. Maryland. Yet, due to an unresolved gap in habeas jurisprudence, circuits courts have split on the materiality standard required for a habeas petitioner to bring such a claim on…
Continue ReadingNote: Venerunt, Viderunt, Vicerunt Venue: How TC Heartland and In re Cray Have Conquered Patent Venue for Corporate Defendants and How Congress Can Balance the Scales of Patent Venue Justice
By Peter Estall. Full text here. Venue in patent infringement suits is governed not by the general venue statute, 28 U.S.C. § 1391, but by its own statute, 28 U.S.C. § 1400(b). Section 1400(b) provides for venue in either the district the defendant “resides” or where it has “a regular and established place of business.” Until the…
Continue ReadingThe Games They Will Play: Tax Games, Roadblocks, and Glitches Under the 2017 Tax Legislation
By David Kamin, David Gamage, Ari Glogower, Rebecca Kysar, Darien Shanske, Reuven Avi- Yonah, Lily Batchelder, J. Clifton Fleming, Daniel Hemel, Mitchell Kane, David Miller, Daniel Shaviro, & Manoj Viswanathan. Full text here. The 2017 tax legislation brought sweeping changes to the rules for taxing individuals and business, the deductibility of state and local taxes, and…
Continue ReadingGraffiti, Speech, and Crime
By Jenny E. Carroll. Full text here. Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the…
Continue ReadingSanctuary Networks
By Rose Cuison Villazor and Pratheepan Gulasekaram. Full text here. Resistance to the Trump Administration’s immigration enforcement policies in the form of sanctuary has increased and spread. In addition to the traditional types of sanctuary such as sanctuary cities and churches, the past year has witnessed the proliferation of novel sites of sanctuary—workplaces, school districts, universities,…
Continue ReadingThe Duty of Data Security
By William McGeveran. Full text here. With the increasing size and frequency of data breaches, several aspects of the law such as regulatory powers and penalties merit reconsideration. Some critics, however, have argued that the law makes the duty of data security inherently unclear—in the words of one legal brief, “an unknown (and unknowable) standard.”…
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