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Volume 104 - Issue 2

An Erie Silence: Erie Guesses and Their Effects on State Courts, Common Law, and Jurisdictional Federalism

By Connor Shaull. Full Text. In the landmark U.S. Supreme Court case of Erie R.R. v. Tompkins, the Court broadly interpreted the Judiciary Act’s limitations and noted that: “There is no federal general common law.” This first-year law school lesson appears simple enough: federal courts, when applying any substantive state law, must defer to the…

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Note: Addressing the HIPAA-potamus Sized Gap in Wearable Technology Regulation

By Paige Papandrea. Full Text. Wearable technology is wildly popular. It is also wildly unregulated. Millions of consumers buy and use these devices, which can constantly track and transmit a variety of users’ health information. Although this health information is similar to, and in many cases more abundant than, information collected by doctors and health…

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Note: A Broken Theory: The Malfunction Theory of Strict Products Liability and the Need for a New Doctrine in the Field of Surgical Robotics

By Christopher Beglinger. Full Text. The malfunction theory of strict products liability affords a plaintiff an inference of a product defect through the presentation of circumstantial evidence. Under the malfunction theory, a plaintiff may establish a prima facie case by providing evidence of the nature of a product malfunction, evidence eliminating abnormal use of the…

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Health Care Costs and the Arc of Innovation

By Neel U. Sukhatme and M. Gregg Bloche. Full Text. Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We…

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Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States

By Amy J. Cohen. Full Text. For decades, proponents of restorative justice on the political left have wondered if their preference for “less state” would attract complex bedfellows and political alliances. But it was only as the crisis of mass incarceration hit American cultural and political consciousness that an increasingly wide range of libertarian and…

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Public-Private Co-Enforcement Litigation

By Stephanie Bornstein. Full Text. Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations.…

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The Normative Fourth Amendment

By Matthew Tokson. Full Text. For decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those…

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Energy and Eminent Domain

By James W. Coleman and Alexandra B. Klass. Full Text. This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in…

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Paying for Gun Violence

By Samuel D. Brunson. Full Text. Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And…

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